Common use of Defense of Claims Clause in Contracts

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 9.3, give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.4. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice (which shall be reasonably acceptable to the indemnified party) to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; , and (iii) to compromise or (v) if settle such indemnified party reasonably claim, which compromise or settlement shall have concluded (upon advice be made only with the written consent of its counsel) that, with respect to such claims, the indemnified party and party, such consent not to be unreasonably withheld; provided, however, if the indemnifying party may remediation or resolution of any such Claim is reasonably expected to have differenta Material Adverse Effect on the indemnified party's business operations, conflicting, or adverse legal positions or interests then, in any such casenotwithstanding the foregoing, the indemnified party shall be entitled to control such remediation or resolution, including without limitation to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim. If the indemnifying party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party's cost and expense, the defense, compromise or continue its own settlement of such claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party assumes the defense and of the claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 9.4 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case connection with any such action claim which may give rise to indemnity under this Article 9 resulting from or arising out of any claim or proceeding is brought against an indemnified party, except as provided for in the next sentenceIndemnitee by a person that is not a party hereto, the indemnifying party Indemnifying Party shall be entitled (unless such Indemnitee elects not to participate therein and seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense thereof, jointly with of any other indemnifying party, with such claim or proceeding. The Indemnifying Party shall select counsel reasonably satisfactory acceptable to such indemnified partyIndemnitee to conduct the defense of such claim or proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly perform resolution thereof. Without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, the Indemnifying Party will not enter into any settlement of, or any claim or proceeding which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder. Without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, the Indemnitee will not enter into any settlement or any claim or proceeding which would lead to liability or create any financial or other obligation on the part of the Indemnifying Party unless the Indemnifying Party has, after written notice, failed or refused to acknowledge responsibility for or defend such claim or proceeding within a reasonable period of time after notice is provided pursuant to Section 9.4. If the Indemnifying Party fails to discharge or undertake to defend against such liability, upon receipt of written notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party Indemnitee of such counselfailure, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party Indemnifying Party shall have the right Defense Cure Period to assume or continue its own defense cure such failure by prosecuting such a defense. If the Indemnifying Party fails to do so within the Defense Cure Period, then the Indemnitee may settle the same and the indemnifying party Indemnifying Party’s liability to the Indemnitee shall be liable for any fees conclusively established by such settlement provided that such settlement is entered into on commercially reasonable terms and conditions, the amount of such liability to include both the settlement consideration and the costs and expenses therefor(including attorneys’ fees) incurred by the Indemnitee in effecting such settlement.

Defense of Claims. In case the event of any claim, threat, liability, tax, interest, fine, penalty, suit, action, proceeding, demand, damage, loss, cost or expense with respect to which indemnity is or may be sought hereunder (an "Indemnity Claim"), the indemnified party shall promptly notify the indemnifying party of such action or proceeding is brought against an Indemnity Claim, specifying in reasonable detail the Indemnity Claim and the circumstances under which it arose. The indemnifying party may elect to assume the defense of such Indemnity Claim, at its expense, by written notice to the indemnified partyparty given within 10 days after the indemnifying party receives notice of the Claim, except as provided for in the next sentence, and the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with promptly engage counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party to direct and conduct such defense; provided, however, that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue engage its own counsel, at its own expense, to participate in such defense. In the event the indemnifying party does not so elect to assume the defense of such Indemnity Claim in the manner specified above, or if, in the reasonable opinion of counsel to the indemnified party, there are defenses available to the indemnified party which are different from or additional to those available to the indemnifying party or which give rise to a material conflict between the defense of the indemnified party and of the indemnifying party, then upon notice to the indemnifying party, the indemnified party may elect to engage separate counsel to conduct its defense, at the expense of the indemnifying party, and the indemnifying party shall be liable for any fees and expenses therefornot have the right to direct or conduct such defense.

Defense of Claims. In case The Indemnifying Party may elect to assume and control the defense of any Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of expenses related thereto, if (a) the Indemnifying Party acknowledges its obligation to indemnify the Indemnified Party for any Losses resulting from such action Claim and provides reasonable evidence to the Indemnified Party of its financial ability to satisfy such obligation, and (b) the Claim does not seek to impose any material liability or proceeding is brought against an indemnified partyobligation on the Indemnified Party other than for money damages. If such conditions are satisfied and the Indemnifying Party elects to assume and control the defense of a Claim, except as provided then (i) the Indemnifying Party will not be liable for any settlement of such Claim effected without its consent, which consent will not be unreasonably withheld; (ii) the Indemnifying Party may not settle such Claim without the consent of the Indemnified Party (not to be unreasonably withheld) unless such settlement includes a full and unconditional release of the Indemnified Party; and (iii) the Indemnified Party may employ separate counsel and participate in the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with but the Indemnified Party will be responsible for the fees and expenses of such counsel reasonably satisfactory to such indemnified party, and after notice from unless (A) the indemnifying party to such indemnified party of its election so Indemnifying Party has failed to assume the defense thereof of such Claim or to employ counsel with respect thereto or (B) a conflict of interest exists between the interests of the Indemnified Party and approval the Indemnifying Party that requires representation by separate counsel, in which case the fees and expenses of such separate counsel will be paid by the indemnified party of Indemnifying Party. If such counselconditions are not satisfied, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with Indemnified Party may assume and control the defense thereof, other than costs of investigation, the Claim at the expense of the Indemnifying Party; provided that the Indemnified Party may not settle any such Claim without the consent of the Indemnifying Party (not to be unreasonably withheld) unless such settlement includes a full and unconditional release of the indemnified party shall be entitled to Indemnifying Party; and further provided that the Indemnifying Party may participate in such defense (at its own the Indemnifying Party's expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor).

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days and so long as the indemnifying Party is not materially prejudiced by the failure to receive such notice. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 7.1 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, with counsel reasonably satisfactory to risk and expense, and such indemnified partyParty shall cooperate in all reasonable respects, and after notice from at the indemnifying party Party's sole cost, risk and expense, except with respect to such the fees and expenses of the indemnified party of its election so to assume the defense thereof and approval Party's attorney, which shall be borne by the indemnified party Party, with the indemnifying Party and such attorneys in the investigation, trial, and defense of such counsellawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party Party's consent, which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party Party a Notice of Election within ten (10) days after delivery of the Notice of Action, the indemnified Party may, but shall not be obligated to defend, provided that in no circumstance shall the indemnifying party will have the financial resources to defend against indemnified Party compromise or settle the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) other matter on behalf or for the account of the indemnifying party fails to defend diligently Party without the action or proceeding within 10 days after receiving notice consent of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably Party, which shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall not be liable for any fees and expenses thereforunreasonably withheld.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days and so long as the indemnifying Party is not materially prejudiced by the failure to receive such notice. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 7.1 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from at the indemnifying party to such indemnified party of its election so to assume the defense thereof Party's sole cost, risk and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigationexpense, and the indemnified party Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense (except with respect to the fees and expenses of the indemnified Party's attorney, which shall be entitled to borne by the indemnified Party) with the indemnifying Party and such attorneys in the investigation, trial, and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense at its own expenseof such lawsuit or action and any appeal arising therefrom. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice Notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable Election is delivered to the indemnified party that Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party will have Party's consent, which consent shall not be unreasonably withheld. If the financial resources indemnifying Party elects not to defend against the claim of the indemnified Party or does not deliver to the indemnified Party a Notice of Election within ten (10) days after delivery of the Notice of Action, the indemnified Party may, but shall not be obligated to, defend, compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case If any Action is filed or initiated against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within ten (10) days after the service of the citation or summons); provided, however, that the failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except to the extent that the indemnifying party demonstrates actual damage caused by such action or proceeding is brought against an indemnified partyfailure. After such notice, except as provided for in the next sentence, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources terms of its indemnity hereunder in connection with such Action, then the indemnifying party shall be entitled, if it so elects, to take control of the defense and investigation of such Action and to employ and engage attorneys of its own choice to handle and defend against the claim or proceeding same, such attorneys to be reasonably satisfactory to the indemnified party, at the indemnifying party’s cost, risk and fulfill its indemnification obligations hereunder, expense (iiiunless (i) the indemnifying party fails has failed to defend diligently assume the action or proceeding within 10 days after receiving notice defense of such failure from Action or (ii) the named parties to such Action include both of the indemnifying party and the indemnified party; (iv) such , and the indemnified party reasonably shall have concluded (upon advice of and its counsel) counsel determine in good faith that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available toto the indemnifying party and that joint representation would be inappropriate), and to compromise or settle such Action, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. The indemnified party may withhold such consent if such compromise or settlement would adversely affect the conduct of business or requires less than an unconditional release to be obtained. If (i) the indemnifying party fails to assume the defense of such Action within fifteen (15) days after receipt of notice thereof pursuant to this Section 8.2, or not available to, (ii) the named parties to such Action include both the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, and the indemnified party and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such caseand that joint representation would be inappropriate, the indemnified party shall against which such Action has been filed or initiated will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party’s cost and expense, the defense, compromise or continue its own settlement of such Action on behalf of and for the account and risk of the indemnifying party; provided, however, that such Action or Proceeding shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the indemnified party assumes defense of the Action, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement and will consult with, when appropriate, and consider any reasonable advice from, the indemnifying party of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and in accordance with this Section 8.2 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any Damages by reason of such settlement or judgment. Regardless of whether the indemnifying party or the indemnified party takes up the defense, the indemnifying party will pay reasonable costs and expenses thereforin connection with the defense, compromise or settlement for any Action or Proceeding under this Section 8.2. The indemnified party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such Action or Proceeding and any appeal arising therefrom; provided, however, that the indemnified party may, at its own cost, participate in the investigation, trial and defense of such Action or Proceeding and any appeal arising therefrom. The indemnifying party shall pay all expenses due under this Section 8.2 as such expenses become due. In the event such expenses are not so paid, the indemnified party shall be entitled to settle any Action under this Section 8.2 without the consent of the indemnifying party and without waiving any rights the indemnified party may have against the indemnifying party.

Defense of Claims. In case any such action or proceeding If a Third Party Claim is brought made against an indemnified partyIndemnified Party, except as provided for in (a) the next sentence, the indemnifying party shall Applicable Indemnifying Party will be entitled to participate therein and assume in the defense thereofthereof and, jointly with any other indemnifying party(b) if it so chooses, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval with counsel selected by the indemnified party Applicable Indemnifying Party, provided that in connection with such assumption such counsel is not reasonably objected to by the Indemnified Party. Should the Applicable Indemnifying Party so elect to assume the defense of such counsela Third Party Claim, the indemnifying party shall Applicable Indemnifying Party will not be liable to such indemnified party the Indemnified Party for any legal expenses subsequently incurred by such indemnified party the Indemnified Party in connection with the defense thereof. If the Applicable Indemnifying Party elects to assume the defense of a Third Party Claim, other than costs the Indemnified Party shall (i) cooperate in all reasonable respects with the Applicable Indemnifying Party in connection with such defense and (ii) not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Applicable Indemnifying Party’s prior written consent, as the case may be. If the Applicable Indemnifying Party shall assume the defense of investigationany Third Party Claim, and the indemnified party Indemnified Party shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. If (i) the indemnifying party fails to notify Applicable Indemnifying Party does not assume the indemnified party defense of any such Third Party Claim, the Indemnified Party may defend the same in writingsuch manner as it may deem appropriate, within 15 days after including settling such claim or litigation with the indemnified party has given notice prior written consent of the action or proceeding, that the indemnifying party will indemnify the indemnified party from Applicable Indemnifying Party and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused upon any such settlement consented to by the claimApplicable Indemnifying Party, (ii) the indemnifying party fails to provide Applicable Indemnifying Party will promptly reimburse the indemnified party with evidence acceptable Indemnified Party therefor upon written request. Notwithstanding anything contained in this Agreement to the indemnified party contrary, no Applicable Indemnifying Party shall be entitled to assume the defense of any part of a Third Party Claim that the indemnifying party will have the financial resources to defend seeks a temporary restraining order, injunction or other equitable relief or relief for other than money damages against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforIndemnified Party.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice and an estimated amount of Damages shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates to the indemnifying Party that the amount of Damages the indemnified Party is entitled to recover has not increased by its failure to so notify the indemnifying Party within ten (10) days and so long as the indemnifying Party is not materially prejudiced by the failure to receive such notice. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 7.1 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from at the indemnifying party to such indemnified party of its election so to assume the defense thereof Party's sole cost, risk and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigationexpense, and the indemnified party Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense (except with respect to the fees and expenses of the indemnified Party's attorney, which shall be entitled to borne by the indemnified Party) with the indemnifying Party and such attorneys in the investigation, trial, and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense at its own expenseof such lawsuit or action and any appeal arising therefrom. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice Notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable Election is delivered to the indemnified party that Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party will have Party's consent, which consent shall not be unreasonably withheld. If the financial resources indemnifying Party elects not to defend against the claim of the indemnified Party or does not deliver to the indemnified Party a Notice of Election within ten (10) days after delivery of the Notice of Action, the indemnified Party may, but shall not be obligated to, defend, compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, thereof other than costs of investigation, investigation and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 15 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, to the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor.

Defense of Claims. In case If any claim is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such claim in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 8(b) to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, risk and expense, and such indemnified Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense, with counsel reasonably satisfactory to the indemnifying Party and such indemnified partyattorneys in the investigation, trial, and after notice from defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselParty's consent, the indemnifying party which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party that Party a Notice of Election within ten (10) days after delivery of the indemnifying party will have Notice of Action, the financial resources indemnified Party may, but shall not be obligated to defend against defend, or the indemnified Party may compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case 14.4.1 If any Indemnitee receives notice of the assertion of any Third Party Claim against such action Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) calendar days after receipt of actual notice of such Third Party Claim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party during the required notification period shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Section 14 to the extent that Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or proceeding is brought against an indemnified partydefenses or otherwise); and provided, except however, that the Indemnitee must, in any event, notify the Indemnifying Party prior to the Termination Date as provided required pursuant to Section 14.1 in order for such party to be indemnified. The Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof with counsel reasonably satisfactory to the Indemnitee. Whether or not the Indemnifying Party elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the next sentenceinvestigation and defense thereof, provided, however, that the indemnifying party Indemnitee shall be entitled pay the fees and disbursements of such separate counsel unless (i) the employment of such separate counsel has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party has failed to participate therein and assume the defense thereof, jointly with any other indemnifying party, of such Third Party Claim within a reasonable time after receipt of notice thereof with counsel reasonably satisfactory to such indemnified partyIndemnitee, or (iii) the named parties to the proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and after notice from the indemnifying party Indemnitee and, in the reasonable judgment of counsel to such indemnified party of its election so Indemnitee, there exists one or more defenses or claims that may be available to assume the defense thereof and approval by Indemnitee that are in conflict with those available to the indemnified party of such counselIndemnifying Party. Notwithstanding the foregoing, the indemnifying party Indemnifying Party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party the fees and disbursements of more than one counsel for all Indemnified Parties in connection with any one proceeding or any similar or related proceedings arising from the defense thereof, other than costs of investigation, and same general allegations or circumstances. Without the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice prior written consent of the action Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or proceeding, that create any financial or other obligation on the indemnifying party will indemnify part of the indemnified party Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, liability in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice respect of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforThird Party Claim.

Defense of Claims. In case If any Proceeding is filed or initiated against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within ten (10) days after the service of the citation or summons); provided, however, that the failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except to the extent that the indemnifying party has been materially prejudiced by such action or proceeding is brought against an indemnified partyfailure to give timely notice. After such notice, except as provided for in the next sentence, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources terms of its indemnity hereunder in connection with such Proceeding, then the indemnifying party shall be entitled, if it so elects, to take control of the defense and investigation of such Proceeding and to employ and engage attorneys of its own choice to handle and defend against the claim or proceeding same, such attorneys to be reasonably satisfactory to the indemnified party, at the indemnifying party's cost, risk and fulfill its indemnification obligations hereunder, expense (iiiunless (i) the indemnifying party fails has failed to defend diligently assume the action or proceeding within 10 days after receiving notice defense of such failure from Proceeding or (ii) the named parties to such Proceeding include both of the indemnifying party and the indemnified party; (iv) such , and the indemnified party reasonably shall have concluded (upon advice of and its counsel) counsel determine in good faith that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party and that joint representation would be inappropriate), and to compromise or settle such Proceeding, which compromise or settlement shall be made only with the written consent of the indemnified party; or (v) , such consent not to be unreasonably withheld. The indemnified party may withhold such consent if such indemnified party reasonably shall have concluded (upon advice compromise or settlement would materially adversely affect the conduct of its counsel) that, with respect to such claimsbusiness. Notwithstanding the foregoing, the indemnified party and may not withhold consent if such compromise or settlement includes an unconditional release of claims against the indemnified party. If (i) the indemnifying party may have different, conflictingfails to assume the defense of such Proceeding within fifteen (15) days after receipt of notice thereof pursuant to this Section 8.2, or adverse legal positions or interests then, in any (ii) the named parties to such case, the indemnified party shall have the right to assume or continue its own defense and Proceeding include both the indemnifying party shall be liable for any fees and expenses therefor.the

Defense of Claims. In case If a claim for Damages (a “Claim”) is made by a party entitled to Indemnification or Set Off Rights hereunder against the Indemnifying Party, the party claiming such indemnification or Set Off Rights shall give written notice (a “Claim Notice”) to the other Party (the (“Indemnifying Party”) as soon as practicable after the party entitled to indemnification or Set Off Rights (the “Indemnified Party”) becomes aware of any fact, condition or event which may give rise to Damages for which indemnification or Set Off Rights may be sought under this Section 9.14. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity or Set Off Rights hereunder, the Claim Notice thereof shall be given to the Indemnifying Party as promptly as practicable (and in any event within thirty (30) calendar days after the service of the citation or summons). The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification or Set Off Rights hereunder, except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. After such notice, if the Indemnifying Party shall acknowledge in writing to the Indemnified Party that the Indemnifying Party shall be obligated under the terms of its indemnity or Set Off Rights hereunder in connection with such lawsuit or action, then the Indemnifying Party shall be entitled, if it so elects, (1) to take control of the defense and investigation of such lawsuit or action, (2) to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Party’s cost, risk and expense unless the named parties to such action or proceeding is brought against an indemnified party, except as provided for in include both the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, Indemnifying Party and the indemnified party shall be entitled to participate Indemnified Party and the Indemnified Party has been advised in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused writing by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which Indemnified Party that are different than from or additional to those available toto the Indemnifying Party, and (3) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not available toto be unreasonably withheld. If the Indemnifying Party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnifying party; or (v) if Indemnified Party against which such indemnified party reasonably shall have concluded claim has been asserted will (upon advice of its counsel) that, with respect delivering notice to such claims, effect to the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall Indemnifying Party) have the right to assume undertake, at the Indemnifying Party’s cost and expense, the defense, compromise or continue its own settlement of such claim on behalf of and for the account and risk of the Indemnifying Party. In the event the Indemnified Party assumes the defense and of the indemnifying party claim, the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 9.14 and for any final judgment (subject to any right of appeal), and the Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In If a claim for Losses (a “Claim”) is to be made by a Buyer Indemnified Party or a Seller Indemnified Party (an “Indemnified Party”), or if any Proceeding is filed or instituted making a claim against any Indemnified Party with respect to a matter subject to indemnity hereunder, such Indemnified Party shall give notice (a “Claim Notice”) to (a) the Sellers, in the case of an indemnification claim pursuant to Section 9.2(a) or (b) the Buyer, in the case of an indemnification claim pursuant to Section 9.2(b) (the “Indemnifying Party”), in either case as soon as practicable after such Indemnified Party becomes aware of any such action fact, condition or proceeding is brought against an indemnified partyevent which may reasonably give rise to Losses for which indemnification may be sought under this Article IX; however, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent such Indemnified Party is actually prejudiced by such failure (to the extent determined by a court of competent jurisdiction). After receipt of a Claim Notice of a Proceeding, the indemnifying party Indemnifying Party shall be entitled have the right to participate therein and assume defend the defense thereof, jointly with any other indemnifying party, Indemnified Party against the Proceeding at the Indemnifying Party’s expense with counsel of its choice reasonably satisfactory to such indemnified partythe Indemnified Party, and after notice from unless the indemnifying party nature of the Claim creates an ethical conflict for the same counsel to such indemnified party of its election so to assume represent the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, Indemnified Party and the indemnified party shall be entitled to participate in such defense at its own expense. If Indemnifying Party, so long as (i) the indemnifying party fails to notify Indemnifying Party notifies the indemnified party Indemnified Party in writing, writing within 15 fifteen (15) days after the indemnified party Indemnifying Party has given notice of received the action or proceeding, Claim Notice and that the indemnifying party Indemnifying Party will indemnify the indemnified party Indemnified Party from and against all the entirety of any Losses the indemnified party Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claimClaim or raised in the Proceeding, (ii) the indemnifying party fails to provide Indemnifying Party provides the indemnified party Indemnified Party with evidence reasonably acceptable to the indemnified party Indemnified Party that the indemnifying party Indemnifying Party will have the financial resources to defend against the claim or proceeding Proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; Proceeding involves only a claim for money damages and no other relief and (iv) the Indemnifying Party conducts the defense of the Proceeding actively and diligently. The Indemnifying Party shall not compromise or settle any such indemnified party Proceeding without the prior written consent of the Indemnified Party or enter into any settlement negotiations in connection with such Proceeding without giving prior written notice to the Indemnified Party. In all other cases the Indemnified Party may defend the claim or Proceeding with one counsel of its choosing reasonably satisfactory to and at the expense of the Indemnifying Party. The Indemnified Party may, at its own cost, participate in the investigation, trial and defense of any such Proceeding defended by the Indemnifying Party and any appeal arising therefrom and employ its own counsel in connection therewith. The parties shall have concluded cooperate with each other in connection with any defense and in any notifications to insurers. If the Indemnifying Party fails to promptly and diligently assume the defense of such Proceeding after receipt of notice hereunder, the Indemnified Party against which such Claim has been asserted shall (upon advice delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such Proceeding with counsel of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, own choosing at the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice expense of its counsel) that, with respect to such claims, the indemnified party Indemnifying Party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party Indemnifying Party shall have the right to assume or continue participate therein at its own defense and cost. The Indemnified Party shall provide prompt notice to the indemnifying party Indemnifying Party in the event of any compromise or settlement entered into pursuant to the immediately preceding sentence. Losses shall be liable for any fees paid within five (5) Business Days of the final determination of the merits and expenses thereforamount of a Claim.

Defense of Claims. In the case of any such action or proceeding is brought against an indemnified partythird party claim, except as provided for if within 20 days after receiving the notice described in the next sentencepreceding Section 6(d), the indemnifying party Indemnifying Party or Parties (i) gives written notice to the Indemnified Party stating that the Indemnifying Party would be liable under the provisions hereof for indemnity in the amount of such claim if such claim were valid and that the Indemnifying Party disputes and intends to defend against such claim, liability or expense at the Indemnifying Party’s own cost and expense and (ii) provides assurance reasonably acceptable to such Indemnified Party that such indemnification will be paid fully and promptly if required and such Indemnified Party will not incur cost or expense during the proceeding, then the Indemnifying Party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with of such claim and to choose counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume for the defense thereof and approval by (subject to the indemnified party consent of such counsel, the indemnifying party Indemnified Party which consent shall not be liable unreasonably withheld) and such Indemnified Party shall not be required to make any payment with respect to such indemnified party for claim, liability or expense as long as the Indemnifying Party is conducting a good faith and diligent defense at its own expense; provided, however, that the assumption of the defense of any legal expenses subsequently incurred such matters by the Indemnifying Party shall relate solely to the claim, liability or expense that is subject or potentially subject to indemnification. If the Indemnifying Party assumes such indemnified party defense in connection accordance with the defense thereofpreceding sentence, other than costs it shall have the right to settle (provided that any such settlement which results in any adverse consequences to the Indemnified Party shall require the consent of investigationsuch Indemnified Party, which consent shall not be unreasonably withheld) all indemnifiable matters related to claims by third parties which are susceptible to being settled provided the Indemnifying Party’s obligation to indemnify such Indemnified Party therefor will be fully satisfied by payment of money by the Indemnifying Party pursuant to a settlement which includes a complete release of such Indemnified Party. The Indemnified Party shall not settle any claim with respect to which the Indemnifying Party has assumed the defense, without the prior written consent of the Indemnifying Party. The Indemnifying Party shall keep such Indemnified Party apprised of the status of the claim, liability or expense and any resulting suit, proceeding or enforcement action, shall furnish such Indemnified Party with all documents and information that such Indemnified Party shall reasonably request and shall consult with such Indemnified Party prior to acting on major matters, including settlement discussions. Notwithstanding anything herein stated, such Indemnified Party shall at all times have the indemnified party shall be entitled right to participate in in, but not control, such defense at its own expense. If (i) expense directly or through counsel; provided, however, if the indemnifying party fails named parties to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for such Indemnified Party shall be paid by the Indemnifying Party provided that such Indemnifying Party shall be obligated to pay for only one such counsel. If no such notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available intent to such indemnified party or other indemnified parties which are different than those available todispute and defend is given by the Indemnifying Party, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded diligent good faith defense is not being or ceases to be conducted, such Indemnified Party may undertake the defense of (upon advice of its counsel) thatwith counsel selected by such Indemnified Party and paid by the Indemnifying Party), with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume compromise or continue its own defense settle, such claim, liability or expense (exercising reasonable business judgment) with the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Such Indemnified Party shall make available all information and assistance that the indemnifying party Indemnifying Party may reasonably request and shall be liable for any fees and expenses thereforcooperate with the Indemnifying Party in such defense.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days; provided further that a Notice of Action must be sent to the indemnifying Party within the applicable survival period as provided in Section 7(a) of this Agreement. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this (S) 7(b) to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, risk and expense, and such indemnified Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense, with counsel reasonably satisfactory to the indemnifying Party and such indemnified partyattorneys in the investigation, trial, and after notice from defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselParty's consent, the indemnifying party which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party that Party a Notice of Election within ten (10) days after delivery of the indemnifying party will have Notice of Action, the financial resources to defend against indemnified Party may, but shall not be obligated to, defend, compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case any such action or proceeding is brought against an indemnified partyIf, except as provided for in the next sentencewithin ten (10) Business Days after giving a Notice of Claim regarding a Claim to Indemnifying Party pursuant to Section 16.2, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice Indemnified Party receives Notice from the indemnifying party to such indemnified party of its election so Indemnifying Party that Indemnifying Party has elected to assume the defense thereof and approval by the indemnified party of such counselClaim, the indemnifying party shall Indemnifying Party will not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party Indemnified Party in connection with the defense thereof; provided, other than costs of investigationhowever, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party that if Indemnifying Party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails take reasonable steps necessary to defend diligently the action or proceeding such Claim within 10 days ten (10) Business Days after receiving notice of Notice from Indemnifying Party that Indemnifying Party believes Indemnifying Party has failed to take such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available tosteps, or if Indemnifying Party has not available toundertaken fully to indemnify Indemnified Party in respect of all Indemnifiable Losses relating to the matter, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party Indemnified Party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense defense, and the indemnifying party shall Indemnifying Party will be liable for all reasonable costs or expenses, including attorneys’ fees, paid or incurred in connection therewith. Without the prior written consent of Indemnified Party, Indemnifying Party will not enter into any fees settlement of any Claim which would lead to liability or create any financial or other obligation on the part of Indemnified Party for which Indemnified Party is not entitled to indemnification hereunder; provided, however, that Indemnifying Party may accept any settlement without the consent of Indemnified Party if such settlement provides a full release to Indemnified Party and no requirement that Indemnified Party acknowledge fault or culpability. If a firm offer is made to settle a Claim without leading to liability or the creation of a financial or other obligation on the part of Indemnified Party for which Indemnified Party is not entitled to indemnification hereunder and Indemnifying Party desires to accept and agrees to such offer, Indemnifying Party will give Notice to Indemnified Party to that effect. If Indemnified Party fails to consent to such firm offer within ten (10) calendar days after its receipt of such Notice, Indemnified Party may continue to contest or defend such Claim and, in such event, the maximum liability of Indemnifying Party to such Claim will be the amount of such settlement offer, plus reasonable costs and expenses thereforpaid or incurred by Indemnified Party up to the date of such Notice.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days and so long as the indemnifying Party is not materially prejudiced by the failure to receive such notice. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 7.1 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, with counsel reasonably satisfactory to risk and expense, and such indemnified partyParty shall cooperate in all reasonable respects, and after notice from at the indemnifying party Party's sole cost, risk and expense, except with respect to such the fees and expenses of the indemnified party of its election so to assume the defense thereof and approval Party's attorney, which shall be borne by the indemnified party Party, with the indemnifying Party and such attorneys in the investigation, trial, and defense of such counsellawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party Party's consent, which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party Party a Notice of Election within ten (10) days after delivery of the Notice of Action, the indemnified Party may, but shall not be obligated to defend, provided that in no circumstances shall the indemnifying party will have the financial resources to defend against indemnified Party compromise or settle the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) other matter on behalf or for the account of the indemnifying party fails to defend diligently Party without the action or proceeding within 10 days after receiving notice consent of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably Party, which shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall not be liable for any fees and expenses thereforunreasonably withheld.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be ----------------- made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.5. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within thirty (30) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (1) to take control of the defense and investigation of such lawsuit or action, (2) to employ and engage attorneys of its own choice to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; , and (3) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. If the indemnifying party fails to assume the defense of such claim within fifteen (v15) if such indemnified party reasonably shall have concluded (upon advice calendar days after receipt of its counsel) that, with respect to such claimsthe Claim Notice, the indemnified party and against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party may have different, conflicting, or adverse legal positions or interests then, in any such caseassumes the defense of the claim, the indemnified party shall have will keep the right to assume indemnifying party reasonably informed of the progress of any such defense, compromise or continue its own defense and the settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 10.5 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days and so long as the indemnifying Party is not materially prejudiced by the failure to receive such notice. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 7.1 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, with counsel reasonably satisfactory to risk and expense, and such indemnified partyParty shall cooperate in all reasonable respects, and after notice from at the indemnifying party Party's sole cost, risk and expense, except with respect to such the fees and expenses of the indemnified party of its election so to assume the defense thereof and approval Party's attorney, which shall be borne by the indemnified party Party, with the indemnifying Party and such attorneys in the investigation, trial, and defense of such counsellawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party Party's consent, which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party that Party a Notice of Election within ten (10) days after delivery of the indemnifying party will have Notice of Action, the financial resources indemnified Party may, but shall not be obligated to defend against defend, or the indemnified Party may compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days; provided further that a Notice of Action must be sent to the indemnifying Party within the applicable survival period as provided in Section 8(a) of this Agreement. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this (S) 8(b) to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, risk and expense, and such indemnified Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense, with counsel reasonably satisfactory to the indemnifying Party and such indemnified partyattorneys in the investigation, trial, and after notice from defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselParty's consent, the indemnifying party which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party that Party a Notice of Election within ten (10) days after delivery of the indemnifying party will have Notice of Action, the financial resources indemnified Party may, but shall not be obligated to defend against defend, or the indemnified Party may compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days and so long as the indemnifying Party is not materially prejudiced by the failure to receive such notice. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 7.1 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, with counsel reasonably satisfactory to risk and expense, and such indemnified partyParty shall cooperate in all reasonable respects, and after notice from at the indemnifying party Party's sole cost, risk and expense (except with respect to such the fees and expenses of the indemnified party of its election so to assume the defense thereof and approval Party's attorney, which shall be borne by the indemnified party Party) with the indemnifying Party and such attorneys in the investigation, trial, and defense of such counsellawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party Party's consent, which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party that Party a Notice of Election within ten (10) days after delivery of the indemnifying party will have Notice of Action, the financial resources to defend against indemnified Party may, but shall not be obligated to, defend, compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days; provided further that a Notice of Action must be sent to the indemnifying Party within ten (10) days after the applicable survival period as provided in SECTION 7(A) of this Agreement. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this SECTION 7(B) to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, risk and expense, and such indemnified Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense, with counsel reasonably satisfactory to the indemnifying Party and such indemnified partyattorneys in the investigation, trial, and after notice from defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselParty's consent, the indemnifying party which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party that Party a Notice of Election within ten (10) days after delivery of the indemnifying party will have Notice of Action, the financial resources indemnified Party may, but shall not be obligated to defend against defend, or the indemnified Party may compromise or settle (exercising reasonable business -30- judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case If a claim for Losses (a "Claim") is to be made by an Indemnified Party, such Indemnified Party shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after such Indemnified Party becomes aware of any such fact, condition or event which may give rise to Losses for which indemnification may be sought under this Section 8. If any lawsuit or enforcement action is filed against any Indemnified Party hereunder, notice thereof (a "Third Party Notice") shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or proceeding is brought against an indemnified partysummons). The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for to the extent that the indemnifying party demonstrates actual damage caused by such failure. After receipt of a Third Party Notice, if the indemnifying party shall acknowledge in writing to the next sentence, Indemnified Party that the indemnifying party shall be entitled to participate therein and assume obligated under the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party terms of its election so to assume the defense thereof and approval by the indemnified party of indemnity hereunder in connection with such counsellawsuit or action, then the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereofentitled, other than costs of investigationif it so elects, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice take control of the action defense and investigation of such lawsuit or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claimaction, (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding include both the indemnifying party fails to provide and the indemnified party with evidence acceptable to Indemnified Party and the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which Indemnified Party that are different than from or additional to those available to, or not available to, to the indemnifying party, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. The Indemnified Party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; and the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom and appoint its own counsel therefor, at its own cost. The parties shall also cooperate with each other in any notifications to insurers. If the indemnifying party fails to assume the defense of such claim within fifteen (v15) if calendar days after receipt of the Third Party Notice, the Indemnified Party against which such indemnified party reasonably shall have concluded claim has been asserted will (upon advice of its counsel) that, with respect delivering notice to such claimseffect to the indemnifying party) have the right to undertake the defense, the indemnified party compromise or settlement of such claim and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue participate therein at its own cost; provided, however, that such claim shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense and of the claim the Indemnified Party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. Notwithstanding the foregoing, the indemnifying party shall not be liable for any the reasonable fees and expenses thereforof more than one separate firm of attorneys at any time for any and all Indemnified Parties (which firm shall be designated in writing by such Indemnified Party or Parties) in connection with any one such action or proceeding arising out of the same general allegations or circumstances.

Defense of Claims. In case If any lawsuit or enforcement action is filed ------------------- against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event not less than fifteen (15) days prior to any hearing date or other date by which action must be taken); provided that the failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except to the extent that the indemnifying party demonstrates actual damage caused by such action failure. After such notice, if the indemnifying party shall acknowledge in writing to such indemnified party that this Agreement applies with respect to such lawsuit or proceeding is brought against an indemnified partyaction, except as provided for in the next sentence, then the indemnifying party shall be entitled entitled, if it so elects, to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying party's cost, risk and expense; and such indemnified party shall cooperate in all reasonable respects, at its cost, risk and expense, with counsel reasonably satisfactory to the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified party may, at its own cost, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The indemnifying party shall not, without the prior written consent of the indemnified party, effect any settlement of any proceeding in respect of which any indemnified party is a party and after notice from indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceeding only involves a remedy for the payment of money by the indemnifying party to and includes an unconditional release of such indemnified party of its election so to assume from all liability on claims that are the defense thereof and approval by the indemnified party subject matter of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, the The indemnifying party shall be entitled have ten (10) business days after receipt of either notice referred to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party in Paragraph 14(c) of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails this Agreement to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the that it elects to conduct and control any legal or administrative action or proceeding, that suit with respect to an indemnifiable claim. If the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of does not give such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such casenotice, the indemnified party shall have the right to assume defend, contest, settle or continue compromise such action or suit in the exercise of its own defense exclusive discretion, and the indemnifying party shall, upon request from the Indemnified Person promptly pay the indemnified person in accordance with the other terms and conditions of this Paragraph 14, the amount of any Indemnity Loss resulting from its liability to the third party claimant. If the indemnifying party gives such notice, it shall have the right to undertake, conduct and control, through counsel of its own choosing (which counsel shall be liable for satisfactory to the indemnified party in the reasonable judgment of the indemnified party) and at its sole expense, the conduct and settlement of such action or suit, and the indemnified party shall cooperate with the indemnifying party in connection therewith; provided, however, that (i) the indemnifying party shall not thereby permit to exist any lien, encumbrance or other adverse change securing the claims indemnified hereunder upon any asset of the indemnified party, (ii) the indemnifying party shall not thereby consent to the imposition of any injunction against the indemnified party without the prior written consent of the indemnified party, (iii) the indemnifying party shall permit the indemnified party to participate in such conduct or settlement through counsel chosen by the indemnified party, but the fees and expenses thereforof such counsel shall be borne by the indemnified party except as provided in clause (iv) below, and (iv) upon a final determination of such action or suit, the indemnifying party shall agree promptly to reimburse to the extent required under this Paragraph 14 the indemnified party for the full amount of any Indemnity Loss resulting from such action or suit and all reasonable and related expenses incurred by the indemnified party, except fees and expenses of counsel for the indemnified party incurred after the assumption of the conduct and control of such action or suit by the indemnifying party. So long as the indemnifying party is contesting any such action in good faith, the indemnified party shall not pay or settle any such action or suit. Notwithstanding the foregoing, the indemnified party shall have the right to pay or settle any such action or suit, provided that in such event the indemnified party shall waive any right to indemnity therefor from the indemnifying party and no amount in respect therefor shall be claimed as a Indemnity Loss under this Agreement.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be ----------------- made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 10.4, give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.4. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice (which shall be reasonably acceptable to the indemnified party) to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; , and (iii) to compromise or (v) if settle such indemnified party reasonably claim, which compromise or settlement shall have concluded (upon advice be made only with the written consent of its counsel) that, with respect to such claims, both the indemnifying and the indemnified party and party, such consent not to be unreasonably withheld; provided, however, if the indemnifying party may remediation or resolution of any such Claim will occur on or at any Facility or is reasonably expected to have differenta material adverse effect on the indemnified party's business operations, conflicting, or adverse legal positions or interests then, in any such casenotwithstanding the foregoing, the indemnified party shall be entitled to control such resolution, including without limitation to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim with the consent of the Indemnifying Party. If the indemnifying party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party's cost and expense, the defense, compromise or continue its own settlement of such claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party assumes the defense and of the claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected with its consent pursuant to and expenses therefor.in accordance with this Section

Defense of Claims. In case If any such action or proceeding is brought filed or initiated against an any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within ten (10) days after the service of the citation or summons); provided, however, that the failure of any indemnified partyparty to give timely notice shall not affect rights to indemnification hereunder except to the extent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, except as provided for in the next sentence, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources terms of its indemnity hereunder in connection with such action or proceeding, then the indemnifying party shall be entitled, if it so elects, to defend against take control of the claim defense and investigation of such action or proceeding and fulfill to employ and engage attorneys of its indemnification obligations hereunderown choice to handle and defend the same, such attorneys to be reasonably satisfactory to the indemnified party, at the indemnifying party’s cost, risk and expense (iiiunless (i) the indemnifying party fails has failed to defend diligently assume the defense of such action or proceeding; or (ii) the named parties to such action or proceeding within 10 days after receiving notice include both of such failure from such the indemnifying party and the indemnified party; (iv) such , and the indemnified party reasonably shall have concluded (upon advice of and its counsel) counsel determine in good faith that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party and that joint representation would be inappropriate), and to compromise or settle such action or proceeding, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. The indemnified party may withhold such consent if such compromise or settlement would adversely affect the conduct of its business or requires less than an unconditional release to be obtained. If (i) the indemnifying party fails to assume the defense of such action or proceeding within fifteen (15) days after receipt of notice thereof pursuant to this Section 4.3; or (vii) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect the named parties to such claims, action or proceeding include both the indemnifying party and the indemnified party and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such caseand that joint representation would be inappropriate, the indemnified party shall against which such action or proceeding has been filed or initiated will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party’s cost and expense, the defense, compromise or continue its own settlement of such action or proceeding on behalf of and for the account and risk of the indemnifying party; provided, however, that such action or proceeding shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the indemnified party assumes defense of the action or proceeding, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement and will consult with, when appropriate, and consider any reasonable advice from, the indemnifying party regarding any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and in accordance with this Section 4.3 and for any final judgment (subject to any right of appeal). Regardless of whether the indemnifying party or the indemnified party takes up the defense, the indemnifying party will pay reasonable costs and expenses thereforin connection with the defense, compromise or settlement for any action or proceeding under this Section 4.3. The indemnified party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such action or proceeding and any appeal arising therefrom; provided, however, that the indemnified party may, at its own cost, participate in the investigation, trial and defense of such action or proceeding and any appeal arising therefrom. The indemnifying party shall pay all expenses due under this Section 4.3 as such expenses become due. In the event such expenses are not so paid, the indemnified party shall be entitled to settle any action or proceeding under this Section 4.3 without the consent of the indemnifying party and without waiving any rights the indemnified party may have against the indemnifying party.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in Subject to the next sentence, the indemnifying party shall have the right, at its option and expense, to assume any Defense of any Claim, provided that within ten (10) days of receiving the notice with respect to such Claim pursuant to the above notice provision (or within such shorter period of time as an answer to or other responsive action may be entitled to participate therein and assume required), the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory by notice delivered to such the indemnified party, elects to assume such Defense and after notice from each indemnifying party acknowledges its obligation hereunder to indemnify the indemnified party with respect to such Claim. Notwithstanding the foregoing, the indemnifying party to such indemnified party of its election so shall not have the right to assume the defense thereof and approval by Defense of any Claim if (i) representation of both the indemnified party and indemnifying party by the same counsel might be prohibited by rules or regulations governing the professional conduct of such counselcounsel due to actual or potential differing interests between them; (ii) the indemnified party determines in good faith that there is a substantial likelihood that such Claim may materially and adversely affect it or its affiliates other than as a result of monetary damages imposed thereon; or (iii) the indemnified party determines in good faith that the indemnifying party has insufficient financial resources to satisfy any monetary damages reasonably likely to result from such Claim. If the indemnifying party has assumed the Defense of a Claim in accordance with the first paragraph of this Section 6(d), then the following shall apply: (i) except as provided in clause (v) below the indemnified party shall have the right to participate and assist in, but not control, the Defense of such Claim and to employ its own counsel in connection therewith; (ii) except as provided in clause (v) below the indemnifying party shall not be liable to such the indemnified party for any legal the fees or expenses subsequently of the indemnified party's counsel or other expenses incurred by such the indemnified party in connection with participating in the defense thereofDefense of such Claim, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, except that the indemnifying party will indemnify the indemnified party from shall be liable for any such fees and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable expenses incurred prior to the indemnified party time that the indemnifying party will have assumed such Defense or except to the financial resources to defend against extent such participation was requested by the claim or proceeding and fulfill its indemnification obligations hereunder, indemnifying party; (iii) counsel used by the indemnifying party fails to defend diligently in connection with the action or proceeding within 10 days after receiving notice Defense of such failure from such Claim shall be reasonably satisfactory to the indemnified party; (iv) such indemnified party reasonably shall have concluded except as provided in clause (upon advice of its counselv) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available tobelow, the indemnifying partyparty shall have no liability with respect to any compromise or settlement of such Claim effected without its consent, which consent shall not be unreasonably withheld; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have differentshall fail or omit diligently to prosecute the Defense of such Claim, conflicting, or adverse legal positions or interests then, in any such case, then (A) the indemnified party shall have the right to assume or continue its own defense control the Defense of such Claim, (B) the indemnifying party shall be liable to the indemnified party for the fees and expenses of the indemnified party's counsel and other expenses incurred by the indemnified party in connection with the Defense of such Claim and (C) the indemnifying party shall be liable for any fees settlement of such Claim effected by the indemnified party; and expenses therefor(vi) the indemnifying party shall not effect any compromise or settlement of such Claim without the consent of the indemnified party, which consent shall not be unreasonably withheld, unless such compromise or settlement includes a full release of the indemnified party, neither the indemnified party's business nor its name nor the business or name of any of its affiliates will be damaged or adversely affected by such settlement, and such settlement is limited strictly to monetary damages. If the indemnifying party does not assume the Defense of a Claim (whether because it elects not to or has no right to) the following shall apply: (i) the indemnifying party shall have the right, at its sole cost and expense, to participate in, but not control, the Defense of such Claim and to employ its own counsel in connection therewith; and (ii) the indemnifying party shall have no liability with respect to any compromise or settlement of such Claims effected without its consent, which shall not be unreasonably withheld.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, thereof other than costs of investigation, investigation and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, to the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor.

Defense of Claims. In case The indemnifying Party shall have the right to defend any such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, Party with counsel (including insurance counsel) of the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel Party’s selection reasonably satisfactory to such the indemnified partyParty, and after notice from with respect to any Claims within the indemnifying party indemnification obligations hereof; provided that the indemnified Party shall have the right to such indemnified party be represented therein by advisory counsel of its election so to assume the defense thereof own selection and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If the defendants in any such action include both the indemnifying Party and the indemnified Party, and (i) if the indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with those available to the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claimParty, (ii) the indemnifying party fails any settlement is reasonably likely to provide involve injunctive, equitable or prospective relief or to materially and adversely affect the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim Party’s business or proceeding and fulfill its indemnification obligations hereunderoperations other than as a result of monetary damages, or (iii) the indemnifying party fails to defend diligently indemnified Party reasonably believes that the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available tomatter in question involves potential criminal liability, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, then the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party Party shall have the right to select separate counsel to participate in the defense of such action on its own behalf and at the indemnifying Party’s expense. An indemnified Party shall give the indemnifying Party prompt written notice of any asserted Claims or actions indemnified against hereunder and shall cooperate in the defense of any such Claims or actions. Without the prior written consent of the indemnified Party, which consent shall not be unreasonably withheld, the indemnifying Party shall not settle any Claims or actions in a manner that would require any action or forbearance from action by, or result in any judgment, including but not limited to criminal liability against, any indemnified Party. If the indemnifying Party fails to assume or continue its own diligently prosecute the defense of any Claim in accordance with this ARTICLE X, then the indemnified Party shall have the absolute right to control the defense of such Claim and the indemnifying party shall be liable right to settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any action, Claim, suit, investigation or proceeding for any which indemnity is afforded hereunder, and the fees and expenses thereforof such defense, including reasonable attorneys’ fees of the indemnified Party’s counsel, and any amount determined to be owed by the indemnifying Party pursuant to such Claim shall be borne by the indemnifying Party, provided that the indemnifying Party will be entitled to participate in, but not control such defense.

Defense of Claims. In case the event of any claim, threat, liability, tax, interest, fine, penalty, suit, action, proceeding, demand, damage, loss, cost or expense with respect to which indemnity is or may be sought hereunder (an "Indemnity Claim"), the indemnified party shall promptly notify the indemnifying party in writing of such action or proceeding is brought against an Indemnity Claim, specifying in reasonable detail the Indemnity Claim and the circumstances under which it arose. The indemnifying party may elect to assume the defense of such Indemnity Claim, at its own expense, by written notice to the indemnified partyparty given within 10 days after the indemnifying party receives written notice of the Indemnity Claim, except as provided for in the next sentence, and the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with promptly engage counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party to direct and conduct such defense; provided, however, that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue engage its own counsel, at its own expense, to participate in such defense. In the event the indemnifying party does not so elect to assume the defense of such Indemnity Claim in the manner specified above, or if, in the reasonable opinion of counsel to the indemnified party, there are defenses available to the indemnified party which are different from or additional to those available to the indemnifying party or which give rise to a material conflict between the defense of the indemnified party and of the indemnifying party, then upon notice to the indemnifying party, the indemnified party may elect to engage separate counsel to conduct its defense, at the expense of the indemnifying party. In the event the indemnifying party assumes the defense of any Indemnity Claim, it may at any time notify the indemnified party of its intention to settle, compromise or satisfy such Indemnity Claim and may make such settlement, compromise or satisfaction (at its own expense) unless within twenty (20) days after the giving of such written notice the indemnified party shall give written notice to the indemnifying party of its intention to assume the defense of the Indemnity Claim, in which event the indemnifying party shall be liable for relieved of its duty hereunder to indemnify the indemnified party. Unless the indemnified party shall have given the notice referred to in the preceding sentence, (i) the indemnified party shall not consent to or make any fees settlement, compromise or satisfaction with respect to the Indemnity Claim without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld, and expenses therefor(ii) any settlement, compromise or satisfaction made by the indemnifying party with respect to such Indemnity Claim shall be deemed to have been consented to by and shall be binding upon the indemnified party.

Defense of Claims. In case any such action or proceeding If a claim for Losses (a “Claim”) is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, except as provided for in the next sentence, party claiming such indemnification will give written notice (a “Claim Notice”) to the indemnifying party shall be as soon as practicable after the party entitled to participate therein and assume indemnification becomes aware of any fact, condition or event which may give rise to Losses for which indemnification may be sought under this Article V. If any lawsuit or enforcement action is filed against any party entitled to the defense thereofbenefit of indemnity under this Agreement, jointly with any other indemnifying party, with counsel reasonably satisfactory written notice of such will be given to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof as promptly as practicable (and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for in any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, event within 15 days after the service of the citation or summons). The failure of any indemnified party has given to give timely notice of under this Agreement will not affect its rights to indemnification under this Agreement, except to the action or proceeding, extent that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or demonstrates actual damage caused by the claimsuch failure. After such notice, (ii) if the indemnifying party fails to provide the indemnified party with evidence acceptable acknowledges in writing to the indemnified party that the indemnifying party will have be obligated under the financial resources to defend against the claim terms of its indemnity under this Agreement in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails will be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same (unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available toto the indemnifying party, in which event the indemnified party will be entitled at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing) and (iii) to compromise or settle such claim, which compromise or settlement will be made only with the written consent of the indemnified party, such consent not available toto be unreasonably withheld. If the indemnifying party fails to assume the defense of such claim within 30 days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party’s cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party; provided, however, that such Claim will not be compromised or (v) if such settled without the written consent of the indemnifying party, which consent will not be unreasonably withheld, unless the proposed settlement involves only the payment of money damages by the indemnifying party. In the event the indemnified party reasonably shall have concluded (upon advice assumes the defense of its counsel) that, with respect to such claimsthe claim, the indemnified party and will keep the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in reasonably informed of the progress of any such casedefense, the indemnified party shall have the right to assume compromise or continue its own defense and the indemnifying party shall be liable for settlement. The parties hereto will reasonably cooperate with each other in connection with any fees and expenses thereforsuch defense.

Defense of Claims. In case the event of any claim, threat, liability, tax, interest, fine, penalty, suit, action, proceeding, demand, damage, loss, cost or expense with respect to which indemnity is or may be sought hereunder (an "Indemnity Claim"), the indemnified party shall promptly notify the indemnifying party in writing of such action or proceeding is brought against an Indemnity Claim, specifying in reasonable detail the Indemnity Claim and the circumstances under which it arose. The indemnifying party may elect to assume the defense of such Indemnity Claim, at its own expense, by written notice to the indemnified partyparty given within ten (10) days after the indemnifying party receives written notice of the Indemnity Claim, except as provided for in the next sentence, and the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with promptly engage counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party to direct and conduct such defense; provided, however, that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue engage its own counsel, at its own expense, to participate in such defense. In the event the indemnifying party does not so elect to assume the defense of such Indemnity Claim in the manner specified above, or if, in the reasonable opinion of counsel to the indemnified party, there are defenses available to the indemnified party which are different from or additional to those available to the indemnifying party or which give rise to a material conflict between the defense of the indemnified party and of the indemnifying party, then upon notice to the indemnifying party, the indemnified party may elect to engage separate counsel to conduct its defense, at the expense of the indemnifying party. In the event the indemnifying party assumes the defense of any Indemnity Claim, it may at any time notify the indemnified party of its intention to settle, compromise or satisfy such Indemnity Claim and may make such settlement, compromise or satisfaction (at its own expense) unless within twenty (20) days after the giving of such written notice the indemnified party shall give written notice to the indemnifying party of its intention to assume the defense of the Indemnity Claim, in which event the indemnifying party shall be liable for relieved of its duty hereunder to indemnify the indemnified party. Unless the indemnified party shall have given the notice referred to in the preceding sentence, (i) the indemnified party shall not consent to or make any fees settlement, compromise or satisfaction with respect to the Indemnity Claim without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld, and expenses therefor(ii) any settlement, compromise or satisfaction made by the indemnifying party with respect to such Indemnity Claim shall be deemed to have been consented to by and shall be binding upon the indemnified party.

Defense of Claims. In case The indemnifying Party shall defend, at its sole expense, any such claim, demand, loss, liability, damage or other cause of action within the scope of the indemnifying Party’s indemnification obligations under this Agreement, provided that the indemnified Party notifies the indemnifying Party promptly in writing of any claim, loss, liability, damage or cause of action against the indemnified Party and gives the indemnifying Party information and assistance at the reasonable expense of the indemnifying Party in defense of the matter. The indemnified Party may be represented by its own counsel (at the indemnified Party’s sole expense) and may participate in any proceeding is brought against an relating to a claim, loss, liability, damage or cause of action in which the indemnified partyParty or the indemnifying Party are defendants, except as provided for in the next sentenceprovided, however, the indemnifying party shall be entitled to participate therein and assume Party shall, at all times, control the defense thereof, jointly with and any other indemnifying party, with counsel reasonably satisfactory to appeal or settlement of any matter for which it has indemnification obligations under this Agreement so long as any such indemnified party, and after notice from the indemnifying party to such indemnified party settlement includes an unconditional release of its election so to assume the defense thereof and approval by the indemnified party Party from all liability arising out of such counselclaim, the indemnifying party shall demand, loss, liability, damage or other cause of action and does not be liable to such indemnified party for require any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, remediation or other action other than costs the payment of investigationmoney, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that which the indemnifying party will indemnify be responsible for hereunder, and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the indemnified Party. Should the Parties both be named as defendants in any third-party from and against all Losses the indemnified party may suffer resulting from, claim or cause of action arising out ofof or relating to the Services, relating to, the Parties will cooperate with each other in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable joint defense of their common interests to the indemnified party extent permitted by law, and will enter into an agreement for joint defense of the action if the Parties mutually agree that the indemnifying party will have execution of the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may same would be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforbeneficial.

Defense of Claims. In case If any lawsuit or enforcement action ----------------- is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days; provided further that a Notice of Action must be sent to the indemnifying Party within the applicable survival period as provided in Section 10.1 of this Agreement. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 11.02 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, risk and expense, and such indemnified Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense, with counsel reasonably satisfactory to the indemnifying Party and such indemnified partyattorneys in the investigation, trial, and after notice from defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselParty's consent, the indemnifying party which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party that Party a Notice of Election within ten (10) days after delivery of the indemnifying party will have Notice of Action, the financial resources indemnified Party may, but shall not be obligated to defend against defend, or the indemnified Party may compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case If any such action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action is filed or proceeding is brought initiated against an indemnified party, except as provided for in the next sentenceIndemnified Party with respect to a matter subject to an indemnification claim by such Indemnified Party, the indemnifying Indemnified Party shall give written notice thereof to the Indemnifying Party or Parties as promptly as practicable, and in any event within 20 days after service of the citation or summons, but the failure of an Indemnified Party to give timely notice shall not affect the rights of that party to indemnification hereunder to the extent such failure does not prejudice the Indemnifying Party. After such notice and a reasonable period of time to allow for analysis of the claim, if the Indemnifying Party acknowledges in writing to the Indemnified Party that the Indemnifying Party is obligated under the terms of its indemnity hereunder for all liabilities of the Indemnified Party in connection with that action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, the Indemnifying Party shall be entitled to participate therein entitled, if it so elects and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to the Indemnified Party, to take control of the defense and investigation of that action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action and to employ and engage attorneys to handle and defend the same, at the Indemnifying Party's cost, risk and expense, except that, if the Indemnifying Party elects not to assume such indemnified partydefense or counsel for the Indemnified Party determines in good faith and advises the Indemnifying Party in writing that there are issues that raise conflicts of interest between the Indemnifying Party and the Indemnified Party, the Indemnified Party may retain counsel satisfactory to him or it, and after notice the Indemnifying Party shall pay all reasonable fees and expenses of such counsel for the Indemnified Party promptly as statements therefore are received; provided, however, that (i) the Indemnifying Party shall be obligated pursuant to this Section 11.4 to pay for only one firm of counsel (unless the use of one counsel for such Indemnified Party would present such counsel with a conflict of interest) for all Indemnified Parties in any jurisdiction, and (ii) the Indemnified Party will cooperate in the defense of any such matter. If the Indemnifying Party assumes the control of such defense, the Indemnified Party shall cooperate in all reasonable respects, at the Indemnifying Party's request and cost, risk and expense, with the Indemnifying Party and its attorneys in the investigation, trial and defense of that action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action and any appeal arising therefrom; provided that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of that action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action and any appeal arising therefrom. The Indemnifying Party shall keep the Indemnified Party apprised of the status of the action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, furnish the Indemnified Party with all documents and information the Indemnified Party reasonably requests in connection therewith, and consult with the Indemnified Party prior to acting on major matters involved in that action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, including settlement discussions. Unless the Indemnified Party receives a complete release from all matters involved in the indemnifying party dispute, no settlement of any action for which indemnification may be payable hereunder shall be made without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned. The Indemnified Party shall be entitled to defend, settle or proceed in such indemnified party other manner as it deems fit, in its sole discretion, in connection with any action, suit, claim, proceeding, demand, assessment or enforcement action with respect to which the Indemnifying Party has not acknowledged its obligations in writing in accordance with the foregoing; and no reasonable action taken by the Indemnified Party in connection therewith shall affect or limit the obligations of its election so the Indemnifying Party pursuant to this Section 11.4. -40- If the Indemnifying Party assumes the control of such defense as provided above but subsequently, in the course of defending the matter, comes to believe that the matter is not properly an obligation of such Indemnifying Party, the Indemnifying Party may with reasonable promptness advise the Indemnified Party of such new information. In such case, (a) if the Indemnified Party then agrees with the Indemnifying Party, the Indemnifying Party and the Indemnified Party shall make mutually satisfactory arrangements for the Indemnified Party to assume the defense thereof and approval by the indemnified party of such counsel, matter and to repay the indemnifying party shall not be liable to such indemnified party Indemnifying Party for any legal expenses subsequently incurred amounts reasonably expended by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled it pursuant to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, this Article 11 with respect to such claimsmatter, and (b) if the Indemnified Party does not then agree with the Indemnifying Party, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party Indemnifying Party shall have the right to assume or commence legal proceedings to determine whether the matter is subject to indemnification by the Indemnifying Party; provided that, in the case of clause (b), the Indemnifying Party shall continue its own defense to be obligated to defend the Indemnified Party with respect to such matter and to otherwise make the indemnifying party shall be liable for any fees payments required by this Article 11 until such dispute is finally adjudicated by a court of competent jurisdiction and expenses thereforall rights to appeal with respect thereto have expired.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentenceUpon receipt of a Claim Notice, the indemnifying ----------------- party shall be entitled to participate therein and may assume the defense thereof, jointly with any other indemnifying party, of said Claim with counsel selected by the indemnifying party and reasonably satisfactory to such the indemnified party, and after notice from the indemnifying party to such . The indemnified party of its election so shall cooperate in all reasonable respects in such defense. If any Claim involves a fact pattern wherein Buyer may have an obligation to indemnify Seller and Seller may have an obligation to indemnify Buyer, each party shall have the right to assume the defense thereof of and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party hire counsel for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice that portion of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties Claim for which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party it may have different, conflicting, or adverse legal positions or interests then, in any such casean obligation of indemnity. In all instances, the indemnified party shall have the right to employ separate counsel and to participate in the defense of any Claim; provided however, the fees and expenses of counsel employed by the indemnified party shall be borne solely by the indemnified party. If the indemnifying party does not notify the indemnified party within the earlier to occur of: (a) five (5) Days before the time a response is due in any litigation matter, or (b) sixty (60) Days after receipt of the Claim Notice, that the indemnifying party elects to undertake the defense of a Claim, the indemnified party shall have the right to defend, at the expense of the indemnifying party, the Claim with counsel of the indemnified party's choosing, subject to the right of the indemnifying party to assume the defense of the Claim at any time prior to settlement or continue final determination thereof. In such event, the indemnified party shall promptly send a written notice to the indemnifying party of any proposed settlement of a Claim, which settlement the indemnifying party may accept or reject, in its own defense and reasonable judgment, within thirty (30) days of receipt of such notice, unless the settlement offer is limited to a shorter period of time in which case the indemnifying party shall have such shorter period of time in which to accept or reject the proposed settlement. Failure of the indemnifying party to accept or reject such settlement within the applicable period of time shall be liable for deemed to be its rejection of such settlement. Notwithstanding the foregoing, the indemnified party may settle any fees matter over the objection of the indemnifying party, but in so doing the indemnified party shall be deemed to have waived any right to indemnity therefor as to (and expenses thereforonly as to) liabilities with respect to which the indemnifying party has acknowledged in writing its indemnity obligation.

Defense of Claims. In case any such action or proceeding If a claim for damages (a “Claim”) is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, except the party claiming such indemnification shall give written notice (a “Claim Notice”) to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to damages for which indemnification may be sought under this Section 8; provided, that the omission by any indemnified party to give notice as provided for herein shall not relieve the indemnifying party of its indemnification obligation under this Section 8 except to the extent that such omission results in a failure of actual notice to the next sentenceindemnifying party and such indemnifying party is damaged as a result of such failure to give notice. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice (which shall be reasonably acceptable to the indemnified party) to handle and defend diligently the same, at the indemnifying party’s cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; or (v) if provided, that the indemnified party may participate in such defense, but only at such indemnified party reasonably party’s expense pursuant to this Section 8.3, and (iii) to compromise or settle such claim, which compromise or settlement shall have concluded (upon advice be made only with the written consent of its counsel) thatthe indemnified party, such consent not to be unreasonably withheld. In any event, Seller and Buyer shall cooperate in the defense of any action or claim subject to this Section 8 and the records of each shall be available to the other with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefordefense.

Defense of Claims. (a) Any Party seeking indemnification under Section 9.01 hereof (the “Indemnified Party”) will give the party from whom such indemnification is sought (the “Indemnifying Party”) prompt (which, in the case of any claim, investigation, action, suit or proceeding made or commenced by a third party for which indemnity is being sought, will be no later than ten Business Days following receipt by the Indemnified Party of written notice of such third party claim, investigation, action, suit or proceeding) notice of any claim, investigation, action, suit or proceeding with respect to which such indemnification is sought; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party has been actually and materially prejudiced as a result of such failure (except that the Indemnifying Party will not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within five Business Days’ time after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third party claim, investigation, action, suit or proceeding. In the case of any such action third party claim, investigation, action, suit or proceeding is brought against an indemnified party, except (other than as provided for in the next sentencebelow), the indemnifying Indemnified Party will be entitled, at the sole expense and liability of the Indemnifying Party, to exercise full control of the defense of, and subject to the other provisions of this Article IX, to the compromise or settlement of any third party shall be entitled claim, investigation, action, suit or proceeding unless the Indemnifying Party, within a reasonable time after the giving of such notice by the Indemnified Party: (i) delivers a written confirmation to participate therein such Indemnified Party that the indemnification provisions of Section 9.01 are applicable to such claim, investigation, action, suit or proceeding and that the Indemnifying Party will indemnify such Indemnified Party in respect of such claim, investigation, action, suit or proceeding pursuant to the terms of Section 9.01, (ii) notifies such Indemnified Party in writing of the Indemnifying Party’s intention to assume the defense thereof, jointly with any other indemnifying party, with and (iii) retains legal counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party Indemnified Party to such indemnified party of its election so to assume conduct the defense thereof and approval by the indemnified party of such counselclaim, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and action, suit or proceeding, in which case the indemnified party shall Indemnifying Party will be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice exercise full control of the action defense, compromise or settlement of such third party claim, investigation, action, suit or proceeding, that except to the indemnifying party will indemnify extent otherwise expressly provided herein. Notwithstanding anything herein to the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating tocontrary, in the nature of, or caused by the case of any third party claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim investigation, action, suit or proceeding and fulfill its indemnification obligations hereunderagainst DHC, (iii) New DHC or any of their respective Subsidiaries, DHC, New DHC or such Subsidiary, as 45 applicable, will be entitled to exercise full control of the indemnifying party fails to defend diligently the action defense, compromise or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforsettlement thereof.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, thereof other than costs of investigation, investigation and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) after electing to participate in and assume the defense of such action or proceeding, the indemnifying party fails to defend diligently the action or proceeding within 10 days Business Days after receiving notice of such failure from such indemnified party; , (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, to the indemnifying party; , or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be ----------------- ----- made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 10.3, give written notice (a "Claim Notice") to the indemnifying party as soon as ------------ practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.4. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within 15 calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available toto the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not available toto be unreasonably withheld. If the indemnifying party fails to assume the defense of such claim within 15 calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or (v) if such settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the indemnified party reasonably shall have concluded (upon advice assumes the defense of its counsel) that, with respect to such claimsthe claim, the indemnified party and will keep the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in reasonably informed of the progress of any such casedefense, the indemnified party shall have the right to assume compromise or continue its own defense and the settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 10.4 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, thereof other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 fifteen (15) days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) after electing to participate in and assume the defense of such action or proceeding, the indemnifying party fails to defend diligently the action or proceeding within 10 days ten (10) Business Days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, to the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor.

Defense of Claims. In case If any action, suit, claim, Tax audit, proceeding, demand, assessment or enforcement action is filed or initiated against any party entitled to the benefit of indemnity hereunder, the indemnified party shall give written notice thereof to the indemnifying party or parties as promptly as practicable (and in any event within thirty (30) days after the service of the citation or summons); provided, however, that the failure of any indemnified party to give timely notice shall not affect the rights of such party to indemnification hereunder except to the extent that the indemnifying party demonstrates actual damage caused by such failure. After such notice and a reasonable period of time to allow for analysis of the relevant claim, if the indemnifying party shall acknowledge in writing to such indemnified party that such indemnifying party shall be obligated under the terms of its indemnity hereunder for all liabilities of the indemnified party in connection with such action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action or proceeding is brought against an (subject to the following sentence), then the indemnifying party shall be entitled, if it so elects and with counsel reasonably satisfactory to the indemnified party, except as provided for to take control of the defense and investigation of such action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, and to employ and engage attorneys to handle and defend the same, at the indemnifying party's cost, risk and expense; and the indemnified party shall cooperate in all reasonable respects, at the indemnifying party's request and cost, risk and expense, with the indemnifying party and its attorneys in the next sentenceinvestigation, trial and defense of such action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, and any appeal arising therefrom; provided, however, that the indemnified party may, at its own cost, participate in such investigation, trial and defense of such action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, and any appeal arising therefrom; and provided further, that the indemnifying party shall have an obligation to keep the indemnified party apprised of the status of the action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, to furnish the indemnified party with all documents and information that the indemnified party shall reasonably request in connection therewith, and to consult with the indemnified party prior to acting on major matters involved in such action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, including settlement discussions, it being understood that no settlement of any action for which indemnification may be payable hereunder shall be made without the prior written consent of the indemnified party. Notwithstanding any other provision of this Section 9.5, if an indemnified party withholds its consent to a settlement or elects to defend any claim, where but for such action the indemnifying party could have settled such claim, the indemnifying party shall be entitled required to participate therein and assume indemnify the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory indemnified party only up to such indemnified party, and after notice from a maximum of the bona fide settlement offer for which the indemnifying party to could have settled such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the claim. The indemnified party shall be entitled to participate defend, settle or proceed in such defense at other manner as it deems fit, in its own expense. If (i) sole discretion, in connection with any action, suit, claim, proceeding, demand, assessment or enforcement action as to which the indemnifying party fails to notify has not acknowledged its obligations in writing in accordance with the foregoing sentence; and no actions taken by the indemnified party in writing, within 15 days after connection therewith shall affect or limit the indemnified party has given notice obligations of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails pursuant to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforthis Section 9.5.

Defense of Claims. In the case of any claim for indemnification under Section 11.1, 11.2 or 11.3 arising from a request for information, audit or claim of a third party (including the IRS or any Governmental Authority), an indemnified party shall give prompt written notice and, subject to the following sentence, in no case later than ten (10) business days after the indemnified party’s receipt of notice of such request for information, audit or claim, to the indemnifying party of any request for information, audit, claim, suit or demand of which such indemnified party has Knowledge and as to which it may request indemnification hereunder. The failure to give such notice shall not, however, relieve the indemnifying party of its indemnification obligations except to the extent that the indemnifying party is actually harmed thereby. The indemnifying party shall have the right to defend and to direct the defense against any such action request for information, audit, claim, suit or proceeding is brought demand (including, without limitation, Litigation Claims, ERISA Claims, Tax Claims and claims relating to Section 11.3(b)), in its name and at its expense, and with counsel selected by the indemnifying party unless such claim, suit or demand seeks an injunction or other equitable relief against an the indemnified party; provided, except as provided however, the indemnifying party shall not have the right to defend or direct the defense of any such request for information, audit, claim, suit or demand if it refuses to acknowledge fully its obligations to the indemnified party or contests, in whole or in part, its indemnification obligations therefor. If the indemnifying party elects, and is entitled, to compromise or defend such request for information, audit or claim, it shall within thirty (30) days (or sooner, if the nature of the claim so requires) notify the indemnified party of its intent to do so, and the indemnified party shall, at the request and expense of the indemnifying party, cooperate in the next defense of such request for information, audit, claim, suit or demand. If the indemnifying party elects not to compromise or defend such request for information, audit or claim, fails to notify the indemnified party of its election as herein provided or refuses to acknowledge or contests its obligation to indemnify under this Agreement, the indemnified party may pay, compromise or defend such request for information, audit or claim. Except as set forth in the immediately preceding sentence, the indemnifying party shall have no indemnification obligations with respect to any such request for information, audit, claim, suit or demand which shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval settled by the indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld or delayed); provided, however, that notwithstanding the foregoing, the indemnified party shall not be required to refrain from paying any claim which has matured by a court judgment or decree, unless an appeal is duly taken therefrom and exercise thereof has been stayed, nor shall it be required to refrain from paying any claim where the delay in paying such counselclaim would result in the foreclosure of a lien upon any of the property or assets then held by the indemnified party or where any delay in payment would cause the indemnified party material economic loss. The indemnifying party’s right to direct the defense shall include the right to compromise or enter into an agreement settling any request for information, audit or claim by a third party; provided that no such compromise or settlement shall obligate the indemnified party to agree to any settlement which requires the taking of any action by the indemnified party other than the delivery of a release, except with the consent of the indemnified party (such consent to be withheld or delayed only for a good faith reason). 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 request for information, audit or claim over the objection of the indemnified party; provided, however, that consent by the indemnified party to settlement or compromise shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expenseunreasonably withheld or delayed. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the The indemnified party shall have the right to assume participate in the defense of any request for information, audit, claim, suit or continue its own defense and demand with counsel selected by it subject to the indemnifying party party’s right to direct the defense. The fees and disbursements of such counsel shall be liable at the expense of the indemnified party; provided, however, that, in the case of any request for any information, audit, claim, suit or demand which seeks injunctive or other equitable relief against the indemnified party, the fees and expenses therefordisbursements of such counsel shall be at the expense of the indemnifying party.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days; provided further that a Notice of Action must be sent to the indemnifying Party within the applicable survival period as provided in Section 10.1 of this Agreement. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 11.02 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, risk and expense, and such indemnified Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense, with counsel reasonably satisfactory to the indemnifying Party and such indemnified partyattorneys in the investigation, trial, and after notice from defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselParty's consent, the indemnifying party which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party that Party a Notice of Election within ten (10) days after delivery of the indemnifying party will have Notice of Action, the financial resources indemnified Party may, but shall not be obligated to defend against defend, or the indemnified Party may compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case If a claim for Losses (a "Claim") is to be made by ----------------- ----- an Indemnified Party, such Indemnified Party shall give written notice (a "Claim ----- Notice") to the indemnifying party as soon as practicable after such Indemnified ------ Party becomes aware of any such fact, condition or event which may give rise to Losses for which indemnification may be sought under this Article 8. If any lawsuit or enforcement action is filed against any Indemnified Party hereunder, notice thereof (a "Third Party Notice") shall be given to the indemnifying party ------------------ as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or proceeding is brought against an summons). The failure of any indemnified partyparty to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After receipt of a Third Party Notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party. The Indemnified Party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; and the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom and appoint its own counsel therefor, at its own cost. The parties shall also cooperate with each other in any notifications to insurers. If the indemnifying party fails to assume the defense of such claim within fifteen (v15) if calendar days after receipt of the Third Party Notice, the Indemnified Party against which such indemnified party reasonably shall have concluded claim has been asserted will (upon advice of its counsel) that, with respect delivering notice to such claimseffect to the indemnifying party) have the right to undertake the defense, the indemnified party compromise or settlement of such claim and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue participate therein at its own cost. In the event the Indemnified Party assumes the defense and of the claim, the Indemnified Party will keep the indemnifying party shall be liable for reasonably informed of the progress of any fees and expenses thereforsuch defense, compromise or settlement.

Defense of Claims. In case If any Action or Proceeding is filed or initiated against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within ten (10) days after the service of the citation or summons); provided, however, that -------- ------- the failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except to the extent that the indemnifying party demonstrates actual damage caused by such action or proceeding is brought against an indemnified partyfailure. After such notice, except as provided for in the next sentence, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources terms of its indemnity hereunder in connection with such Action or Proceeding, then the indemnifying party shall be entitled, if it so elects, to take control of the defense and investigation of such Action or Proceeding and to employ and engage attorneys of its own choice to handle and defend against the claim or proceeding same, such attorneys to be reasonably satisfactory to the indemnified party, at the indemnifying party's cost, risk and fulfill its indemnification obligations hereunder, expense (iiiunless (i) the indemnifying party fails has failed to defend diligently assume the action or proceeding within 10 days after receiving notice defense of such failure from Action or Proceeding or (ii) the named parties to such Action or Proceeding include both of the indemnifying party and the indemnified party; (iv) such , and the indemnified party reasonably shall have concluded (upon advice of and its counsel) counsel determine in good faith that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available toto the indemnifying party and that joint representation would be inappropriate), and to compromise or settle such Action or Proceeding, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. The indemnified party may withhold such consent if such compromise or settlement would adversely affect the conduct of business or requires less than an unconditional release to be obtained. If (i) the indemnifying party fails to assume the defense of such Action or Proceeding within fifteen (15) days after receipt of notice thereof pursuant to this Section 8.2, or not available to, (ii) the named parties to such Action or Proceeding include both ----------- the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, and the indemnified party and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such caseand that joint representation would be inappropriate, the indemnified party shall against which such Action or Proceeding has been filed or initiated will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party's cost and expense, the defense, compromise or continue its own settlement of such Action or Proceeding on behalf of and for the account and risk of the indemnifying party; provided, however, that such Action or Proceeding shall not be compromised or -------- ------- settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the indemnified party assumes defense of the Action or Proceeding, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement and will consult with, when appropriate, and consider any reasonable advice from, the indemnifying party of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and in accordance with this Section 8.2 and for any final judgment (subject to any right of appeal), and the ----------- indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any Damages by reason of such settlement or judgment. Subject to the limitations set forth in Section 8.2(d) below, -------------- regardless of whether the indemnifying party or the indemnified party takes up the defense, the indemnifying party will pay reasonable costs and expenses thereforin connection with the defense, compromise or settlement for any Action or Proceeding under this Section 8.2. ----------- The indemnified party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such Action or Proceeding and any appeal arising therefrom; provided, -------- however, that the indemnified party may, at its own cost, participate in the ------- investigation, trial and defense of such Action or Proceeding and any appeal arising therefrom. The indemnifying party shall pay all expenses due under this Section 8.2 as such expenses become due. In the event such expenses are not so ----------- paid, the indemnified party shall be entitled to settle any Action or Proceeding under this Section 8.2 without the consent of the indemnifying party and without ----------- waiving any rights the indemnified party may have against the indemnifying party.

Defense of Claims. In case If any such action, suit, claim, proceeding, demand, assessment or enforcement action is filed or proceeding is brought initiated against an indemnified party, except any Indemnified Party (as provided for in the next sentencedefined below) hereunder, the indemnifying Indemnified Party shall give written notice thereof to the Indemnifying Party or parties as promptly as practicable (and in any event within thirty (30) days after the service of the citation or summons); PROVIDED, HOWEVER, that the failure of any Indemnified Party to give timely notice shall not affect the rights of such party to indemnification hereunder except to the extent that the Indemnifying Party demonstrates actual damage caused by such failure. After such notice and a reasonable period of time to allow for analysis of the relevant claim, if the Indemnifying Party shall acknowledge in writing to such Indemnified Party that such Indemnifying Party shall be entitled obligated under the terms of its indemnity hereunder for all Losses of the Indemnified Party in connection with such action, suit, claim, proceeding, demand, assessment or enforcement action (subject to participate therein the following sentence), then the Indemnifying Party shall be entitled, if it so elects and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to the Indemnified Party, to take control of the defense and investigation of such indemnified partyaction, suit, claim, proceeding, demand, assessment or enforcement action, and after notice from to employ and engage attorneys to handle and defend the indemnifying party to such indemnified party of same, at the Indemnifying Party's cost, risk and expense; and the Indemnified Party shall cooperate in all reasonable respects, at the Indemnifying Party's request and cost, risk, and expense, with the Indemnifying Party and its election so to assume attorneys in the investigation, trial and defense thereof and approval by the indemnified party of such counselaction, suit, claim, proceeding, demand, assessment or enforcement action, and any appeal arising therefrom; PROVIDED, HOWEVER, that the Indemnified Party may, at its own cost, participate in such investigation, trial and defense of such action, suit, claim, proceeding, demand, assessment or enforcement action, and any appeal arising therefrom; and PROVIDED, FURTHER, that the Indemnifying Party shall have an obligation to keep the Indemnified Party apprised of the status of the action, suit, claim, proceeding, demand, assessment or enforcement action, to furnish the Indemnified Party with all documents and information that the Indemnified Party shall reasonably request in connection therewith, and to consult with the Indemnified Party prior to acting on major matters involved in such action, suit, claim, proceeding, demand, assessment or enforcement action, including settlement discussions, it being understood that no settlement of any action for which indemnification may be payable hereunder shall be made without the prior written consent of the Indemnified Party. Notwithstanding any other provision of this Article 5, if an Indemnified Party withholds its consent to a settlement or elects to defend any claim, where but for such action the Indemnifying Party could have settled such claim, the indemnifying party Indemnifying Party shall not be liable required to indemnify the Indemnified Party only up to a maximum of the bona fide settlement offer for which the Indemnifying Party could have settled such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party claim. The Indemnified Party shall be entitled to participate defend, settle or proceed in such defense at other manner as it deems fit, in its own expensesole discretion, in connection with any action, suit, claim, proceeding, demand, assessment or enforcement action as to which the Indemnifying Party has not acknowledged its obligations in writing in accordance with the second sentence of this Section 5.5; and no actions taken by the Indemnified Party in connection therewith shall affect or limit the obligations of the Indemnifying Party pursuant to this Article 5. If (i) the indemnifying party fails to notify the indemnified party Indemnified Party does not have control over any proceeding described in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party this Article 5 and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, Indemnified Party determines that it desires to settle its claim in any such case, the indemnified party proceeding it shall have the right to assume or continue its own defense and do so without the indemnifying party consent of the Indemnifying Party, provided that in such event, the Indemnified Party shall be liable for lose the benefits of any fees and expenses thereforindemnification provided by this Article 5 with respect to such proceeding.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentenceUpon receipt of a Claim Notice, the indemnifying party shall be entitled to participate therein and may assume the defense thereof, jointly with any other indemnifying party, of said Claim with counsel selected by the indemnifying party and reasonably satisfactory to such the indemnified party, and after notice from the indemnifying party to such . The indemnified party of its election so shall cooperate in all reasonable respects in such defense. If any Claim involves a fact pattern wherein Buyer may have an obligation to indemnify Seller and Seller may have an obligation to indemnify Buyer, each party shall have the right to assume the defense thereof of and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party hire counsel for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice that portion of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties Claim for which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party it may have different, conflicting, or adverse legal positions or interests then, in any such casean obligation of indemnity. In all instances, the indemnified party shall have the right to employ separate counsel and to participate in the defense of any Claim; provided however, the fees and expenses of counsel employed by the indemnified party shall be borne solely by the indemnified party. If the indemnifying party does not notify the indemnified party within the earlier to occur of: (a) five (5) Business Days before the time a response is due in any litigation matter, or (b) sixty (60) Days after receipt of the Claim Notice, that the indemnifying party elects to undertake the defense of a Claim, the indemnified party shall have the right to defend, at the expense of the indemnifying party, the Claim with counsel of the indemnified party's choosing, subject to the right of the indemnifying party to assume the defense of the Claim at any time prior to settlement or continue final determination thereof. In such event, the indemnified party shall promptly send a written notice to the indemnifying party of any proposed settlement of a Claim, which settlement the indemnifying party may accept or reject, in its own defense and reasonable judgment, within thirty (30) days of receipt of such notice, unless the settlement offer is limited to a shorter period of time in which case the indemnifying party shall have such shorter period of time in which to accept or reject the proposed settlement. Failure of the indemnifying party to accept or reject such settlement within the applicable period of time shall be liable for deemed to be its rejection of such settlement. Notwithstanding the foregoing, the indemnified party may settle any fees matter over the objection of the indemnifying party, but in so doing the indemnified party shall be deemed to have waived any right to indemnity therefor as to (and expenses thereforonly as to) liabilities with respect to which the indemnifying party has acknowledged in writing its indemnity obligation.

Defense of Claims. In case If any lawsuit or enforcement action is filed against any Purchaser Indemnified Party or any Seller Indemnified Party (hereinafter referred to as an "Indemnified Party"), written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification to which the Indemnified Party is entitled hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten days after the service of the citation or summons); provided that the failure of any Indemnified Party to give timely notice shall not affect such Indemnified Party's rights to indemnification hereunder to the extent that the Indemnified Party demonstrates that the amount the Indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten days. After such notice, if the indemnifying Party elects to compromise or defend any such asserted liability and to perform its obligations under this SECTION 7.1, then the indemnifying Party shall be entitled, if it so elects, to take control of the defense and investigation of such lawsuit or action or proceeding is brought against an indemnified partyand to employ and engage attorneys of its own choice to handle and defend the same, except as provided for at the indemnifying Party's sole cost, risk and expense, and such Indemnified Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense, with the indemnifying Party and such attorneys in the next sentenceinvestigation, trial, and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the indemnifying Party promptly notifies the Indemnified Party that it intends to defend the claim and to perform its obligations under this SECTION 7.1, the indemnifying party Indemnified Party shall be entitled to participate therein and assume the defense thereofnot pay, jointly with any other indemnifying party, with counsel reasonably satisfactory to settle or compromise such indemnified party, and after notice from claim without the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselParty's consent, the indemnifying party which consent shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expenseunreasonably withheld. If (i) the indemnifying party fails Party elects not to notify defend the indemnified party in writing, within 15 days after the indemnified party has given notice claim of the action or proceedingIndemnified Party, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting fromIndemnified Party may, arising out of, relating but shall not be obligated to, in the nature ofdefend, or caused by the claim, Indemnified Party may compromise or settle (iiexercising reasonable business judgment) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case If a claim for Damages (a "Claim") is to be made by an Indemnitee, such Indemnitee shall, subject to Section 9.2, give written notice (a "Claim Notice) to the indemnifying party as soon as practicable after such Indemnitee becomes aware of any such fact, condition or event which may give rise to Damages or which indemnification may be sought under this Section 9.4. If any lawsuit or enforcement action is filed against any Indemnitee hereunder, notice thereof (a "Third Party Notice") shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or proceeding is brought against an summons). The failure of any indemnified partyparty to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After receipt of a Third Party Notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; , and (iii) to compromise or (v) if settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. The indemnified party reasonably shall have concluded (upon advice cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of its counsel) that, with respect to such claims, lawsuit or action and any appeal arising therefrom; and the indemnified party and the indemnifying party may have differentmay, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue at its own cost, participate in the investigation, trial and defense and the indemnifying party shall be liable for any fees and expenses therefor.of

Defense of Claims. In case If any lawsuit or enforcement action is ----------------- filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days; provided further that a Notice of Action must be sent to the indemnifying Party within the applicable survival period as provided in Section 10.1 of this Agreement. The indemnifying Party may elect to compromise or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 11.02 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, risk and expense, and such indemnified Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense, with counsel reasonably satisfactory to the indemnifying Party and such indemnified partyattorneys in the investigation, trial, and after notice from defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselParty's consent, the indemnifying party which consent shall not be liable unreasonably withheld. If the indemnifying Party elects not to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with defend the defense thereof, other than costs claim of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action Party or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable does not deliver to the indemnified party that Party a Notice of Election within ten (10) days after delivery of the indemnifying party will have Notice of Action, the financial resources indemnified Party may, but shall not be obligated to defend against defend, or the indemnified Party may compromise or settle (exercising reasonable business judgment) the claim or proceeding other matter on behalf, for the account, and fulfill its indemnification obligations hereunderat the risk, (iii) of the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforParty.

Defense of Claims. In case any such action or proceeding If a claim for Damages is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party entitled to such indemnification shall give written notice to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.4. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen days after the service of the citation or summons); provided, that the failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice terms of its counsel) that there may be one indemnity hereunder in connection with such lawsuit or more legal defenses available to such indemnified party or other indemnified parties which are different than those available toaction, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and then the indemnifying party shall be liable entitled, if it so elects, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense provided that the indemnifying party and its counsel shall proceed with diligence and in good faith with respect thereto. The indemnified party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnified party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The indemnifying party shall not enter into a settlement arrangement in any lawsuit or action that the indemnifying party has taken control of the defense of without the written consent of the indemnified party, which consent shall not be unreasonably withheld. If a tax audit is commenced or any tax is claimed for any fees period of the Company prior to the Closing Date, such tax audit or claim shall be treated as a lawsuit or enforcement action for purposes of this Section 10.4(d); provided, however, that the Majority Shareholders shall be solely responsible for all liabilities and expenses thereforarising therefrom, including, without limitation, taxes, interest and penalties, except to the extent of any reserves in respect of such taxes shown on the Closing Balance Sheet.

Defense of Claims. In case If any action or proceeding (including any governmental investigation or inquiry) shall be brought or asserted or threatened to be brought or asserted against an indemnified party in respect of which an indemnity may be sought from an indemnifying party, such indemnified party shall notify the indemnifying party in writing as promptly as practicable (and in any event within ten (10) Business Days after the service of the citation or summons); provided, however, that the failure of the indemnified party to give timely notice hereunder shall relieve the indemnifying party of its indemnification obligations hereunder only if, and only to the extent that, such failure caused the Damages for which the indemnifying party is obligated to be greater than they would have been had the indemnified party given timely notice. The indemnifying party shall have the right to assume the defense of such action or proceeding, including through the retention of counsel reasonably satisfactory to the indemnified party, by notifying the indemnified party within ten (10) Business Days after receipt of the indemnified party’s written notice. The indemnified party shall have the right to participate in the defense of such action or proceeding is brought against an indemnified partyat its sole cost and expense; provided, except as provided for in the next sentencehowever, that the indemnifying party shall be entitled liable to participate therein the extent provided under this Article 9 for all reasonable costs and assume expenses of defending such action or proceeding incurred by the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, including reasonable fees and after notice from the indemnifying party to such indemnified party disbursements of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If if (i) the indemnifying party fails to notify assume the indemnified party in writing, within 15 days after the indemnified party has given notice defense of the such action or proceeding, that proceeding in accordance with the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, preceding sentence; or caused by the claim, (ii) the indemnifying party fails named parties to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the any such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (ivincluding any impleaded parties) include both such indemnified party reasonably and the indemnifying party, and such indemnified party shall have concluded (upon advice of its counsel) been advised by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; or party (v) in which case, if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and notifies the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such casewriting that it elects to employ separate counsel at the expense of the indemnifying party, the indemnified indemnifying party shall not have the right to assume the defense of such action or continue its own defense and the proceeding on behalf of such indemnified party). The indemnifying party shall not be liable for any fees and expenses thereforsettlement of any such action or proceeding affected without its written consent (not to be unreasonably withheld). The indemnified party shall not be required to consent to the settlement of any action or proceeding if such settlement involves anything other than the payment of money by the indemnifying party in full settlement of such action or proceeding.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be ----------------- made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 10.2, give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.3. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice (which shall be reasonably acceptable to the indemnified party) to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; , and (iii) to compromise or (v) if settle such indemnified party reasonably claim, which compromise or settlement shall have concluded (upon advice be made only with the written consent of its counsel) that, with respect to such claims, both the indemnifying and the indemnified party and party, such consent not to be unreasonably withheld; provided, however, if the indemnifying party may remediation or resolution of any such Claim will occur on or at any Facility or is reasonably expected to have differenta material adverse effect on the indemnified party's business operations, conflicting, or adverse legal positions or interests then, in any such casenotwithstanding the foregoing, the indemnified party shall be entitled to control such resolution, including without limitation to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim with the consent of the Indemnifying Party. If the indemnifying party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party's cost and expense, the defense, compromise or continue its own settlement of such claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party assumes the defense and of the claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected with its consent pursuant to and expenses thereforin accordance with this Section 10.3 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.4. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources terms of its indemnity hereunder in connection with such lawsuit or action, then the indemnifying party shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend against the claim or proceeding same, and fulfill its indemnification obligations hereunder, (iii) to compromise or settle such claim, provided that any compromise or settlement which results in the indemnified party becoming subject to injunctive relief or that otherwise adversely affects the business of the indemnified party shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. If the indemnifying party fails to defend diligently assume the action or proceeding defense of such claim within 10 fifteen (15) calendar days after receiving notice receipt of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claimsClaim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party and the indemnifying party may not assuming such defense within 15 days of such notice) have differentthe right to undertake, conflictingat the indemnifying party's cost and expense, the defense, compromise or adverse legal positions or interests then, in any settlement of such caseclaim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party assumes the defense of the claim, the indemnified party shall have will keep the right to assume indemnifying party reasonably informed of the progress of any such defense, compromise or continue its own defense and the settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 10.4 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In the case of any claim for indemnification under Section 11.1 or 11.2 arising from a claim of a third party (including the IRS or any Governmental Authority), promptly upon receipt of notice or any knowledge of such claims, and in no case later than ten (10) days thereafter, an indemnified party shall give written notice, to the indemnifying party of any claim, suit or demand of which such indemnified party has knowledge and as to which it may request indemnification hereunder. The failure to give such notice shall not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent that the indemnifying party is actually harmed thereby. The indemnifying party shall have the right upon written notice to the indemnified party within thirty (30) days, after receipt of a request for indemnification from such party to defend and to direct the defense against any such action claim, suit or proceeding is brought demand, in its name and at its expense, and with counsel selected by the indemnifying party unless such claim, suit or demand seeks an injunction or other equitable relief against an the indemnified party. If the indemnifying party elects to compromise or defend such claim, except as provided for the indemnified party shall, at the request and expense of the indemnifying party, cooperate in the next defense of such claim, suit or demand. If the indemnifying party elects not to pay, compromise or defend such claim or fails to notify or inform the indemnified party of its election as herein provided following a request therefrom, the indemnified party may pay, compromise or defend such claim. Except as set forth in the immediately preceding sentence, the indemnifying party shall be entitled have no indemnification obligations with respect to participate therein and assume the defense thereofany such claim, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval suit or demand that is settled by the indemnified party without the prior written consent of such counselthe indemnifying party (which consent shall not be unreasonably withheld or delayed); provided, however, that notwithstanding the foregoing, the indemnifying indemnified party shall not be liable required to refrain from paying any claim which has matured by a court judgment or decree, unless an appeal is duly taken therefrom and exercise thereof has been stayed, nor shall it be required to refrain from paying any claim where the delay in paying such indemnified party for claim would result in the foreclosure of a Lien upon any legal expenses subsequently incurred of the property or assets then held by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party or where any delay in payment would have a Material Adverse Effect on the indemnified party. The indemnifying party’s right to direct the defense shall be entitled include the right to participate in compromise or enter into an agreement settling any claim by a third party; provided that no such defense at its own expense. If (i) the indemnifying party fails to notify compromise or settlement shall obligate the indemnified party in writing, within 15 days after to agree to any settlement which requires the taking of any action by the indemnified party has given notice other than the delivery of a release, except with the action or proceeding, that the indemnifying party will indemnify consent of the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, (such consent not to be unreasonably withheld or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable delayed). Except as expressly provided herein to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such casecontrary, the indemnified party shall have the right to assume participate at its sole cost and expense in the defense of any claim, suit or continue its own defense and demand with counsel selected by it subject to the indemnifying party party’s right to direct the defense. The fees and disbursements of such counsel shall be liable for any fees and expenses thereforat the expense of the indemnified party.

Defense of Claims. In case If any such action or proceeding is (including any governmental investigation or inquiry) shall be brought or asserted or threatened to be brought or asserted against an indemnified party in respect of which indemnity may be sought from an indemnifying party, except as provided for such indemnified party shall promptly notify the indemnifying party in the next sentence50 writing, and the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with including the employment of counsel reasonably satisfactory to such indemnified party, party and after notice from the indemnifying party to such payment of all expenses. Such indemnified party of its election so shall have the right to assume the defense thereof employ separate counsel in any such action and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party participate in connection with the defense thereof, other than costs but the fees and expenses of investigation, and such counsel shall be the expense of such indemnified party shall be entitled to participate in such defense at its own expense. If unless (i) the indemnifying party fails has agreed to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action pay such fees and expenses or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails shall have failed to provide assume the defense of such action or proceeding or shall have failed to employ counsel reasonably satisfactory to such indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim in any such action or proceeding and fulfill its indemnification obligations hereunder, or (iii) the indemnifying party fails named parties to defend diligently the any such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (ivincluding any impleaded parties) include both such indemnified party reasonably and the indemnifying party, and such indemnified party shall have concluded (upon advice of its counsel) been advised by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; or party (v) in which case, if such indemnified party reasonably shall have concluded (upon advice notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of its counsel) that, with respect to such claimsthe indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for such indemnified party and any other indemnified parties, which firm shall be designated in writing to the indemnifying party may have differentby such indemnified parties). The indemnifying party shall not be liable for any settlement of any such action or proceeding effected without its written consent, conflictingbut if settled with its written consent (which shall not be unreasonably withheld), or adverse legal positions or interests then, if there be a final judgment for the plaintiff in any such caseaction or proceeding, the indemnifying party agrees to indemnify and hold harmless such indemnified party parties from and against any loss or liability by reason of such settlement or judgment. Notwithstanding anything herein to the contrary, Shareholders shall have the right to assume control the conduct of any audit or continue its own defense and the indemnifying party shall be liable proceeding with respect to Taxes involving such Subject Company for any fees period or periods prior to and expenses thereforincluding the Closing Date so long as such audit or proceeding either (i) will not result in any Tax being assessed against any Subject Company for the period or periods prior to and including the Closing Date or (ii) the Shareholders have indemnified Buyer against any liabilities for any Tax being assessed against any Subject Company for the period or periods prior to and including the Closing Date.

Defense of Claims. In the case of any such action or proceeding is brought against an indemnified partythird party claim, except as provided for if within 20 days after receiving the notice described in the next sentencepreceding Section 7(d), the indemnifying party Indemnifying Party (i) gives written notice to the Indemnified Party stating that the Indemnifying Party would be liable under the provisions hereof for indemnity in the amount of such claim if such claim were valid and that the Indemnifying Party disputes and intends to defend against such claim, liability or expense at the Indemnifying Party’s own cost and expense, and (ii) provides assurance reasonably acceptable to such Indemnified Party that such indemnification will be paid fully and promptly if required and such Indemnified Party will not incur cost or expense during the proceeding, then the Indemnifying Party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with of such claim and to choose counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume for the defense thereof and approval by (subject to the indemnified party consent of such counsel, the indemnifying party Indemnified Party which consent shall not be liable unreasonably withheld) and such Indemnified Party shall not be required to make any payment with respect to such indemnified party for claim, liability or expense as long as the Indemnifying Party is conducting a good faith and diligent defense at its own expense; provided, however, that the assumption of the defense of any legal expenses subsequently incurred such matters by the Indemnifying Party shall relate solely to the claim, liability or expense that is subject or potentially subject to indemnification. If the Indemnifying Party assumes such indemnified party defense in accordance with the preceding sentence, it shall have the right to settle indemnifiable matters related to claims by third parties where (x) the only obligation of the Indemnified Party and Indemnifying Party in connection with such settlement is the payment of money damages and such money damages are satisfied in full by the Indemnifying Party, and (ii) the settlement includes a complete release of the relevant Indemnified Party or Parties. Any other settlement of a claim for which the Indemnifying Party has assumed the defense thereofshall require the prior written consent of the relevant Indemnified Party or Parties, other than costs which consent shall not be unreasonably withheld. No Indemnified Party shall settle any claim with respect to which the Indemnifying Party has assumed the defense, without the prior written consent of investigationthe Indemnifying Party. The Indemnifying Party shall keep such Indemnified Party apprised of the status of the claim, liability or expense and any resulting suit, proceeding or enforcement action, shall furnish such Indemnified Party with all documents and information that such Indemnified Party shall reasonably request and shall consult with such Indemnified Party prior to acting on major matters, including settlement discussions. Notwithstanding anything herein stated, such Indemnified Party shall at all times have the indemnified party shall be entitled right to participate in in, but not control, such defense at its own expense. If (i) expense directly or through counsel; provided, however, if the indemnifying party fails named parties to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct, the reasonable expense of separate counsel for such Indemnified Party shall be paid by the Indemnifying Party provided that such Indemnifying Party shall be obligated to pay for only one such counsel. If no such notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available intent to such indemnified party or other indemnified parties which are different than those available todispute and defend is given by the Indemnifying Party, or not available to, the indemnifying party; or (v) if such indemnified party reasonably diligent good faith defense is not being or ceases to be conducted, such Indemnified Party may undertake the defense of (with counsel selected by such Indemnified Party, which selection shall have concluded (upon advice require the consent of its counsel) thatthe Indemnifying Party, with respect to such claimswhich consent shall not be unreasonably withheld, and paid by the indemnified party Indemnifying Party), and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume compromise or continue its own defense settle, such claim, liability or expense (exercising reasonable business judgment) with the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Such Indemnified Party shall make available all information and assistance that the indemnifying party Indemnifying Party may reasonably request and shall be liable for any fees and expenses thereforcooperate with the Indemnifying Party in such defense.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal Change Healthcare Inc. has requested confidential treatment of this registration statement and associated correspondence pursuant to Rule 83 of the Securities and Exchange Commission. defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 11.2 give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 11.2. If any party is entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within thirty (30) calendar days after the service or the citation or summons) or other notice. The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, the indemnifying party shall be entitled entitled, if it so elects, (i) to participate therein take control of the response to, defense, investigation or other resolution of such Claim, (ii) to employ and assume engage attorneys of its own choice to handle and defend the defense thereofsame, jointly with any other at the indemnifying party's cost, with counsel reasonably satisfactory to such indemnified partyrisk, and after notice from expense, and (iii) to compromise or settle such Claim; provided, however, that the 39 41 indemnifying party to such indemnified party shall not settle any claim without the consent of its election so to assume the defense thereof and approval by the indemnified party if the remedy sought against the indemnified party is other than solely for money damages; provided, further, that so long as the limitation set forth in the first sentence of such counselsubsection (e) of this Section 11.2 is applicable to Damages incurred by an indemnified party, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection will (i) consult with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled before settling any Claim and (ii) consider in good faith the indemnified party's views with respect to participate in such defense at its own expenseany potential settlement. If (i) the indemnifying party fails to notify assume the defense of such Claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party in writing, within 15 days after the indemnified party against which such Claim has given been asserted will (upon delivering notice of the action or proceeding, that to such effect to the indemnifying party will indemnify party) have the indemnified party from and against all Losses the indemnified party may suffer resulting fromright to undertake, arising out of, relating to, in the nature of, or caused by the claim, (ii) at the indemnifying party fails to provide party's cost and expense, the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim defense, compromise, settlement or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice other resolution of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice Claim on behalf of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, and for the account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised, settled or (v) if such otherwise resolved without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the indemnified party reasonably shall have concluded (upon advice assumes the defense of its counsel) that, with respect to such claimsthe Claim, the indemnified party and will keep the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in reasonably informed of the progress of any such casedefense, the indemnified party shall have the right to assume compromise, settlement or continue its own defense and the other resolution. The indemnifying party shall be liable for any fees settlement of any Claim effected pursuant to and expenses therefor.in accordance with this Section 11.2 for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement, judgment or other resolutions. (e)

Defense of Claims. In case If any such action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action is filed or proceeding is brought initiated against an indemnified party, except as provided for in the next sentenceIndemnified Party with respect to a matter subject to an indemnification claim by that Indemnified Party, the indemnifying Indemnified Party shall give written notice thereof to the Indemnifying Party or Parties as promptly as practicable, and in any event within 20 days after service of the citation or summons, but the failure of an Indemnified Party to give timely notice shall not affect the rights of that party to indemnification hereunder to the extent that failure does not prejudice the Indemnifying Party. After that notice and a reasonable period of time to allow for analysis of the claim, if the Indemnifying Party acknowledges in writing to the Indemnified Party that the Indemnifying Party is obligated under the terms of its indemnity hereunder for all Losses of the Indemnified Party in connection with that action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, the Indemnifying Party shall be entitled to participate therein entitled, if it so elects and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified partythe Indemnified Party, to take control of the defense and investigation of that action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action and to employ and engage attorneys to handle and defend the same, at the Indemnifying Party's cost, risk and expense, except that, if the Indemnifying Party elects not to assume that defense or counsel for the Indemnified Party determines in good faith and advises the Indemnifying Party in writing that there are issues that raise conflicts of interest between the Indemnifying Party and the Indemnified Party, the Indemnified Party may retain counsel satisfactory to him, her or it, and after notice the Indemnifying Party shall pay all reasonable fees and expenses of such counsel for the Indemnified Party promptly as statements therefor are received; provided, however, that (a) the Indemnifying Party shall be obligated pursuant to this Section 11.4 to pay for only one firm of counsel (unless the use of one counsel for that Indemnified Party would present that counsel with a conflict of interest) for all Indemnified Parties in any jurisdiction, and (b) the Indemnified Party shall cooperate in the defense of any such matter. If the Indemnifying Party assumes the control of that defense, the Indemnified Party shall cooperate in all reasonable respects, at the Indemnifying Party's request and cost, risk and expense, with the Indemnifying Party and its attorneys in the investigation, trial and defense of the action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action and any appeal arising therefrom; provided that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of that action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action and any appeal arising therefrom. The Indemnifying Party shall keep the Indemnified Party apprised of the status of the action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, furnish the Indemnified Party with all documents and information the Indemnified Party reasonably requests in connection therewith, and consult with the Indemnified Party before acting on major matters involved in that action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, including settlement discussions. Unless the Indemnified Party receives a complete release from all matters involved in the indemnifying party dispute, no settlement of any action for which indemnification may be payable hereunder shall be made without the prior written consent of the Indemnified Party. The Indemnified Party shall be entitled to defend, settle or proceed in such indemnified party other manner as it deems fit, in its sole discretion, in connection with any action, suit, claim, proceeding, demand, assessment or enforcement action with respect to which the Indemnifying Party has not acknowledged its obligations in writing in accordance with the foregoing; and no reasonable action taken by the Indemnified Party in connection therewith shall affect or limit the obligations of its election so the Indemnifying Party pursuant to this Section 11.4. If the Indemnifying Party assumes the control of the defense as provided above but subsequently, in the course of defending the matter, comes to believe that the matter is not properly an obligation of that Indemnifying Party, the Indemnifying Party may with reasonable promptness advise the Indemnified Party of that new information. In that case, (a) if the Indemnified Party then agrees with the Indemnifying Party, the Indemnifying Party and the Indemnified Party shall make mutually satisfactory arrangements for the Indemnified Party to assume the defense thereof of that matter and approval by to repay the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party Indemnifying Party for any legal expenses subsequently incurred amounts reasonably expended by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled it pursuant to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, this Article 11 with respect to such claimsthat matter, and (b) if the Indemnified Party does not then agree with the Indemnifying Party, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party Indemnifying Party shall have the right to assume or commence legal proceedings to determine whether the matter is subject to indemnification by the Indemnifying Party; provided that, in the case of the foregoing clause (b), the Indemnifying Party shall continue its own defense to be obligated to defend the Indemnified Party with respect to that matter and to otherwise make the indemnifying party shall be liable for any fees payments required by this Article 11 until that dispute is finally adjudicated by a court of competent jurisdiction and expenses thereforall rights to appeal with respect thereto have expired.

Defense of Claims. In case Promptly after receipt by any indemnified party under Section 10.01 or 10.02 of notice of any claim or the commencement of any action, such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, party shall notify the indemnifying party shall be entitled in writing of the claim or the commencement of that action; provided, however, that the failure to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the notify an indemnifying party shall not be liable relieve it from any liability which it may have under Section 10.01 or 10.02 except to such indemnified party for any legal expenses subsequently incurred the extent it has been materially prejudiced by such indemnified party in connection with the defense thereoffailure; and provided further, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceedinghowever, that the failure to notify any indemnifying party will indemnify the shall not relieve it from any liability which it may have to any indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different otherwise than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the under this Agreement. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (i) the employment thereof has been specifically authorized by the indemnifying party in writing; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and counsel retained by the indemnifying party cannot adequately represent both the indemnifying party and such indemnified party in light of the claims and defenses that each intends to raise; or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party within a reasonable time after the commencement of the action. In the case of (ii) or continue (iii) above, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to select separate counsel to participate in the defense of such action on behalf of the indemnified party. Notwithstanding the foregoing sentence, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with no more than one local counsel, if necessary) at any time for all such indemnified parties, which firm shall be designated in writing by the indemnified parties. An indemnifying party shall not, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought 50 under Section 10.02 by such indemnified party, unless such settlement (x) does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any such indemnified party, and (y) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. In addition, an indemnifying party shall not be liable under Section 10.02 for any settlement of any such action effected without its own defense written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any loss or liability covered by the applicable indemnities set forth in Section 10.02 by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel in accordance with this Section 10.03, the indemnifying party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 120 days after receipt by the indemnifying party of the aforesaid request, (ii) such request is accompanied by documentation reasonably adequate to provide verification of the work done by counsel for which such fees and expenses thereforare charged, including narrative time entries, and (iii) the indemnifying party shall not have reimbursed the indemnified party for undisputed fees and expenses in accordance with such request prior to the date of such settlement.

Defense of Claims. In case If a claim for Liabilities is to be made by a ----------------- party entitled to indemnification under this Section 13, the party entitled to such indemnification shall give written notice to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any such action fact, condition or event which may give rise to Liabilities for which indemnification may be sought under this Section 13. If any action, suit or proceeding alleging a claim for Liabilities is brought filed against an indemnified partyany party entitled to the benefit of indemnity hereunder, except written notice thereof shall be given to the indemnifying party as provided for in the next sentencepromptly as practicable. After such notice, the indemnifying party shall be entitled entitled, if it so elects, (i) to participate therein and assume take control of the defense thereofand investigation of such action, jointly with any other indemnifying partysuit or proceeding, with counsel (ii) to employ and engage attorneys and experts reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of to handle and defend the same, and (iii) with the indemnified party's consent, to settle such counselaction, suit or proceeding, all at the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party party's sole risk and expense, provided, in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceedingeach instance, that the indemnifying -------- party will indemnify and such counsel shall proceed with diligence and in good faith with respect thereto; and provided, further that any such settlement shall include, -------- ------- among other things, an absolute and unconditional release of the indemnified party from all Liabilities. The indemnified party shall cooperate in all reasonable respects with the indemnifying party and against all Losses such attorneys in the investigation, trial and defense of such action, suit or proceeding and any appeal arising therefrom; provided, however, that the indemnified party may suffer resulting frommay, arising out ofat -------- ------- its own cost, relating to, participate in the nature ofinvestigation, or caused by the claimtrial and defense of such action, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim suit or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforappeal arising therefrom.

Defense of Claims. In case If a claim for Losses (a "Claim") is to be made by an Indemnified Party, such Indemnified Party shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after such Indemnified Party becomes aware of any such fact, condition or event which may give rise to Losses for which indemnification may be sought under this ARTICLE VIII. If any lawsuit or enforcement action is filed against any Indemnified Party hereunder, notice thereof (a "Third Party Notice") shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or proceeding is brought against an summons). The failure of any indemnified partyparty to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After receipt of a Third Party Notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party. The Indemnified Party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; and the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom and appoint its own counsel therefor, at its own cost. The parties shall also cooperate with each other in any notifications to insurers. If the indemnifying party fails to assume the defense of such claim within fifteen (v15) if calendar days after receipt of the Third Party Notice, the Indemnified Party against which such indemnified party reasonably shall have concluded claim has been asserted will (upon advice of its counsel) that, with respect delivering notice to such claimseffect to the indemnifying party) have the right to undertake the defense, the indemnified party compromise or settlement of such claim and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue participate therein at its own cost. In the event the Indemnified Party assumes the defense and of the claim, the Indemnified Party will keep the indemnifying party shall be liable for reasonably informed of the progress of any fees and expenses thereforsuch defense, compromise or settlement.

Defense of Claims. In case If any legal proceeding shall be instituted, or any demand or claim shall be made, against any party entitled to indemnification hereunder, such action or proceeding is brought against an indemnified partyparty shall give prompt written notice thereof to the indemnifying party and, except as otherwise provided for in the next sentencethis Section 10, the indemnifying party shall have the right to defend any litigation, action, suit, demand, or claim for which indemnification may be entitled to participate therein and assume sought unless the defense indemnified party determines that such litigation, action, suit, demand or claim, or the resolution thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such could have an ongoing material adverse effect on the business of the indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselin which case, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in defend any such defense at its own expenselitigation. If (i) the indemnifying party fails to notify defends the litigation, action, suit, demand or claim, the indemnified party shall extend reasonable cooperation in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party connection with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) such defense. If the indemnifying party fails to defend diligently the action or proceeding same within 10 days after receiving notice a reasonable length of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such casetime, the indemnified party shall have the right be entitled to assume or continue its own the defense thereof, and the indemnifying party shall be liable to repay the indemnified party for any all expenses reasonably incurred in connection with said defense (including reasonable attorneys' fees and expenses thereforsettlement payments) if it is determined that such request for indemnification was proper. If the indemnifying party shall not have the right to assume the defense of any litigation, action, suit, demand, or claim in accordance with either of the two preceding sentences, the indemnified parties shall have the absolute right to control the defense of such litigation, action, suit, demand, or claim; provided, however, that litigation, action, suit, demand, or claim shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the indemnified party assumes the defense of any such litigation, action, suit, demand, or claim, the indemnified party shall keep the indemnifying party reasonably informed of the progress of any such defense (including any proposed compromise or settlement).

Defense of Claims. In If a claim for Losses (a “Claim”) is to be made by a Company Indemnified Party or a Triad Indemnified Party (an “Indemnified Party”), such Indemnified Party shall give notice (a “Claim Notice”) to (a) Triad, in the case of an indemnification claim pursuant to Section 11.1 or (b) Company, in the case of an indemnification claim pursuant to Section 11.2 (the “Indemnifying Party”), in either case as soon as practicable after such Indemnified Party becomes aware of any such action fact, condition or proceeding is brought against an indemnified partyevent which may reasonably give rise to Losses for which indemnification may be sought under this Article XI; however, the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent the Indemnifying Party is actually prejudiced by such failure (to the extent determined by a court of competent jurisdiction). If any Proceeding is filed or instituted making a Claim against any Indemnified Party with respect to a matter subject to indemnity hereunder, notice thereof shall be given to the Indemnifying Party as provided for in the next sentencepromptly as practicable; however, the indemnifying party failure of any Indemnified Party to give timely notice hereunder shall be entitled not affect rights to participate therein and assume indemnification hereunder, except to the defense thereofextent the Indemnifying Party is actually prejudiced by such failure (to the extent determined by a court of competent jurisdiction). After receipt of such a notice of a Proceeding, jointly with any other indemnifying party, the Indemnifying Party shall have the right to defend the Indemnified Party against the Proceeding at the Indemnifying Party’s expense with counsel of its choice reasonably satisfactory to such indemnified partythe Indemnified Party, and after notice from unless the indemnifying party nature of the Claim creates an ethical conflict or otherwise makes it inadvisable for the same counsel to such indemnified party of its election so to assume represent the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, Indemnified Party and the indemnified party shall be entitled to participate in such defense at its own expense. If Indemnifying Party, so long as (i) the indemnifying party fails to notify Indemnifying Party notifies the indemnified party Indemnified Party in writing, writing within 15 fifteen (15) days after the indemnified party Indemnified Party has given notice of the action Claim or proceeding, Proceeding that the indemnifying party Indemnifying Party will indemnify the indemnified party Indemnified Party from and against all the entirety of any Losses the indemnified party Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claimClaim or raised in the Proceeding, (ii) the indemnifying party fails to provide Indemnifying Party provides the indemnified party Indemnified Party with evidence reasonably acceptable to the indemnified party Indemnified Party that the indemnifying party Indemnifying Party will have the financial resources to defend against the claim or proceeding Proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; Proceeding involves only a Claim for money damages and no other relief and (iv) the Indemnifying Party conducts the defense of the Proceeding actively and diligently. The Indemnifying Party shall not compromise or settle any such indemnified party reasonably Proceeding without the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld or delayed) or enter into any settlement negotiations in connection with such Proceeding without giving prior written notice to the Indemnified Party. In all other cases the Indemnified Party may defend the Claim or Proceeding with counsel of its choosing at the expense of the Indemnifying Party. The Indemnified Party may, at its own cost, participate in the investigation, trial and defense of any such Proceeding defended by the Indemnifying Party and any appeal arising therefrom and employ its own counsel in connection therewith. The Parties shall have concluded cooperate with each other in connection with any defense and in any notifications to insurers. If the Indemnifying Party fails to promptly and diligently assume the defense of such Proceeding after receipt of notice hereunder, the Indemnified Party against which such Claim has been asserted shall (upon advice delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such Proceeding with counsel of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, own choosing at the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice expense of its counsel) that, with respect to such claims, the indemnified party Indemnifying Party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party Indemnifying Party shall have the right to assume or continue participate therein at its own defense and the indemnifying party cost. Losses shall be liable for any fees paid within five (5) business days of the final determination of the merits and expenses thereforamount of a Claim.

Defense of Claims. In case Any Buyer Indemnitee or Seller Indemnitee (the "Indemnified Party") seeking indemnification under this Agreement shall give to the party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a written notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder within 30 days of learning of the existence of such action claim; provided, however, that the Indemnified Party's failure to provide such notice in not more than 30 days shall not preclude the Indemnified Party from being indemnified for such claim or proceeding is brought against demand, except to the extent that the failure to give timely notice results in a forfeiture of substantive defenses available to the Indemnifying Party. Upon receipt by the Indemnitor of a Claim Notice from an indemnified Indemnified Party with respect to any claim of a third party, except as provided for such Indemnitor may assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other expenses related thereto; and the Indemnified Party shall cooperate in the next sentencedefense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. If the indemnifying party shall be entitled to participate therein and Indemnitor does not assume the defense thereof, jointly the Indemnitor shall similarly cooperate with the Indemnified Party in such defense or prosecution. The Indemnified Party shall have the right to participate in the defense or prosecution of any other indemnifying partylawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, with but the reasonable fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the Indemnitor shall not have promptly employed counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party Indemnified Party to such indemnified party take charge of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party such Indemnified Party shall have reasonably concluded that there exists a significant conflict of interest with evidence acceptable respect to the indemnified party that conduct of such Indemnified Party's defense by the indemnifying party will indemnitor, in either of which events such reasonable fees and expenses of one counsel shall be borne by the Indemnitor and the Indemnitor shall not have the financial resources right to defend against direct the defense of any such action on behalf of the Indemnified Party. The Indemnitor shall have the right, in its sole discretion, to settle any claim or proceeding solely for monetary damages for which indemnification has been sought and fulfill is available hereunder. The Indemnified Party shall give written notice to the Indemnitor of any proposed settlement of any suit, which settlement the Indemnitor may, if it shall have assumed the defense of the suit, reject in its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding reasonable judgment within 10 days after receiving notice of receipt of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, notice. Notwithstanding the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, foregoing the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party Indemnified Party shall have the right to assume pay or continue its own settle any suit for which indemnification has been sought and is available hereunder, provided, that, if the defense and of such claim shall have been assumed by the indemnifying party Indemnitor, the Indemnified Party shall automatically be liable for deemed to have waived any fees and expenses thereforright to indemnification hereunder.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be ----------------- made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 10.4, give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.4. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice (which shall be reasonably acceptable to the indemnified party) to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; , and (iii) to compromise or (v) if settle such indemnified party reasonably claim, which compromise or settlement shall have concluded (upon advice be made only with the written consent of its counsel) that, with respect to such claims, both the indemnifying and the indemnified party and party, such consent not to be unreasonably withheld; provided, however, if the indemnifying party may remediation or resolution of any such Claim will occur on or at any Facility or is reasonably expected to have differenta material adverse effect on the indemnified party's business operations, conflicting, or adverse legal positions or interests then, in any such casenotwithstanding the foregoing, the indemnified party shall be entitled to control such resolution, including without limitation to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim with the consent of the Indemnifying Party. If the indemnifying party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party's cost and expense, the defense, compromise or continue its own settlement of such claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party assumes the defense and of the claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected with its consent pursuant to and expenses thereforin accordance with this Section 44 10.4 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a “Claim”) is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall give written notice (a “Claim Notice”) to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 8.6. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, in which event the indemnified party and shall be entitled, at the indemnifying party may party’s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld; provided, however, if the remediation or resolution of any such Claim is reasonably expected to have differentan adverse effect on the indemnified party’s business operations, conflicting, or adverse legal positions or interests then, in any such casenotwithstanding the foregoing, the indemnified party shall be entitled to control such remediation or resolution, and to compromise or settle such Claim. If the indemnifying party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party’s cost and expense, the defense, compromise or continue its own settlement of such claim on behalf of and for the account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the indemnified party assumes the defense and of the claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 8.6 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment. Notwithstanding anything to the contrary contained in this Agreement, in the event that the indemnified party had a reasonable opportunity, but failed in good faith to mitigate any Damages with respect to any claim, including the failure to use commercially reasonable efforts to recover under a policy of insurance or under a contractual right of set-off or indemnity, amounts of indemnity payable to such indemnified party shall be reduced by the amount by which such indemnified party could have reduced such loss had such indemnified party not failed to use commercially reasonable efforts to mitigate such Damages.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 11.2. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within 15 calendar days after the service or the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to defend diligently take control of the action or proceeding within 10 days after receiving notice defense and investigation of such failure from lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk, and expense unless the named parties to such indemnified party; (iv) such lawsuit or action include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available toto the indemnifying party, and (iii) to compromise or settle such lawsuit or action which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not available toto be unreasonably withheld. If the indemnifying party fails to assume the defense of such lawsuit or action within 15 calendar days after receipt of the Claim Notice, the indemnified party against which such lawsuit or action has been asserted shall (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such lawsuit or action on behalf of and for the account and risk of the indemnifying party; provided, however, that such lawsuit or (v) if such indemnified party reasonably action shall have concluded (upon advice not be compromised or settled without the written consent of its counsel) thatthe indemnifying party, with respect to such claims, which consent shall not be unreasonably withheld. In the event the indemnified party and assumes the indemnifying party may have different, conflicting, defense of the such lawsuit or adverse legal positions or interests then, in any such caseaction, the indemnified party shall have keep the right to assume indemnifying party reasonably informed of the progress of any such defense, compromise or continue its own defense and the settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 11.2 for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In the case of any claim for indemnification under Section 8.1, 8.2 or 8.3 arising from a claim of a third party, an indemnified party shall give prompt written notice to the indemnifying party of any claim, suit or demand of which such indemnified party has knowledge and as to which it may request indemnification hereunder. The failure to give such notice shall not, however, relieve the indemnifying party of its indemnification obligations except to the extent that the indemnifying party is actually harmed thereby. The indemnifying party shall have the right to defend and to direct the defense against any such action claim, suit or proceeding is brought demand, in its name and at its expense, and with counsel selected by the indemnifying party unless such claim, suit or demand seeks an injunction or other equitable relief against an the indemnified party; PROVIDED, except as provided for HOWEVER, the indemnifying party shall not have the right to defend or direct the defense of any such claim, suit or demand if it refuses to acknowledge fully its obligations to the indemnified party or contests, in whole or in part, its indemnification obligations therefor. If the indemnifying party elects and is entitled to compromise or defend such claim, it shall within 30 days (or sooner, if the nature of the claim so requires) notify the indemnified party of its intent to do so, and the indemnified party shall, at the expense of the indemnifying party, cooperate in the next defense of such claim, suit or demand. If the indemnifying party elects not to compromise or defend such claim, fails to notify the indemnified party of its election as herein provided or refuses to acknowledge or contests its obligation to indemnify under this Agreement, the indemnified party may pay, compromise or defend such claim. Except as set forth in the immediately preceding sentence, the indemnifying party shall have no indemnification obligations with respect to any such claim, suit or demand which shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval settled by the indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld or delayed); PROVIDED, HOWEVER, that notwithstanding the foregoing, the indemnified party shall not be required to refrain from paying any claim which has matured by a court judgment or decree, unless an appeal is duly taken therefrom and exercise thereof has been stayed, nor shall it be required to refrain from paying any claim where the delay in paying such counselclaim would result in the foreclosure of a lien upon any of the property or assets then held by the indemnified party or where any delay in payment would cause the indemnified party material economic loss. The indemnifying party's right to direct the defense shall include the right to compromise or enter into an agreement settling any claim by a third party; PROVIDED that no such compromise or settlement shall obligate the indemnified party to agree to any settlement which requires the taking of any action by the indemnified party other than the delivery of a release. 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 other; provided, however, that consent to settlement or compromise shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expenseunreasonably withheld. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the The indemnified party shall have the right to assume participate in the defense of any claim, suit or continue its own defense demand with counsel selected by it subject to the indemnifying party's right to direct the defense. The fees and disbursements of such counsel shall be at the expense of the indemnified party; PROVIDED, HOWEVER, that, in the case of any claim, suit or demand which seeks injunctive or other equitable relief against the indemnified party as to which the indemnifying party shall be liable for any not in fact have employed counsel to assume the defense of such claim, suit or demand, the fees and expenses therefordisbursements of such counsel shall be at the expense of the indemnifying party.

Defense of Claims. In case If any action or proceeding (including any governmental investigation or inquiry by any Governmental Body) shall be brought or asserted or threatened to be brought or asserted against an indemnified party in respect of which indemnity may be sought from an indemnifying party, such indemnified party shall promptly notify the indemnifying party in writing, and the indemnifying party may, in its sole discretion, promptly upon receipt of such notice, assume the defense thereof, including the employment of counsel (who may be counsel for the indemnifying party) reasonably satisfactory to such indemnified party and the payment of all expenses therefor. The indemnifying party shall not, except with the written consent of the indemnified party (or if such consent is unreasonably withheld), consent to the entry of a judgment or settlement. If the indemnifying party elects to assume the defense of any such action or proceeding, the indemnified party shall have the right, in its sole discretion, to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expense of such indemnified party unless (a) the indemnifying party has agreed to pay such fees and expenses or (b) the indemnifying party shall have elected not to assume the defense of such action or proceeding or shall have failed to promptly assume the defense of such action or proceeding or shall have failed to employ counsel satisfactory to such indemnified party in any such action or proceeding is brought against an or (c) the named parties to any such action or proceeding (including any impeded parties) include both such indemnified party, except as provided for in party and the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) been advised by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; or party (v) in which case, if such indemnified party reasonably shall have concluded (upon advice notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of its counsel) that, with respect to such claimsthe indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for such indemnified party and any other indemnified parties, which firm shall be designated in writing by such indemnified parties). The indemnifying party shall not be liable for any settlement of any such action or proceeding effected without its written consent, but if settled with its written consent (which shall not be unreasonably withheld), or if there be a final judgment for the plaintiff in any such action or proceeding, the indemnifying party may have different, conflicting, agrees to indemnify and hold harmless such indemnified parties from and against any loss or adverse legal positions liability by reason of such settlement or interests then, in judgment. If either party shall claim indemnification for Damages hereunder for any such caseclaim other than a third party claim, the indemnified party shall have the right to assume or continue its own defense and promptly notify the indemnifying party of the nature of the claim and the amount of the Damages and payment therefor shall be liable made by the indemnifying party forthwith upon receipt of such notice. In addition, the indemnified party shall cooperate with the indemnifying party and its representatives in connection with the defense or investigation of any claim or other matter for any fees which indemnification is sought, as reasonably requested by the indemnifying party (including by providing access to books and expenses thereforrecords and representatives of the indemnified party on reasonable request, provided that such access does not unreasonably interfere with Buyer's business.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 10.2, give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.3. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice (which shall be reasonably acceptable to the indemnified party) to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; , and (iii) to compromise or (v) if settle such indemnified party reasonably claim, which compromise or settlement shall have concluded (upon advice be made only with the written consent of its counsel) that, with respect to such claims, the indemnified party and party, such consent not to be unreasonably withheld; provided, however, if the indemnifying party may remediation or resolution of any such Claim will occur on or at any Facility or is reasonably expected to have differenta Material Adverse Effect on the indemnified party's business operations, conflicting, or adverse legal positions or interests then, in any such casenotwithstanding the foregoing, the indemnified party shall be entitled to control such remediation or resolution, including without limitation to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim. If the indemnifying party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party's cost and expense, the defense, compromise or continue its own settlement of such claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party assumes the defense and of the claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses therefor.in accordance with this

Defense of Claims. In case any such action or proceeding (i) Subject to the provisions of subparagraph (e)(ii), if a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.2. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within five (5) calendar days after the service or the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual prejudice caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources terms of its indemnity hereunder in connection with such lawsuit or action, then the indemnifying party shall be entitled, if it so elects, (i) to participate in or, if it so elects, to take control of the defense and investigation of such lawsuit or action; (ii) to employ and engage attorneys of its own choice to handle and defend against the claim same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding include both the indemnifying party and fulfill the indemnified party and the indemnified party has been advised in writing by counsel that a conflict of interest between the indemnified party and indemnifying party exists, in which event the indemnified party may in its indemnification obligations hereunder, discretion engage separate counsel to participate in the Proceedings; and (iii) to compromise or settle such Claim, provided that, if any -------- such settlement or compromise entails material non-monetary affirmative obligations on the part of the indemnified party, such compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld or delayed. If the indemnifying party fails to defend diligently assume the action or proceeding defense of such Claim within 10 forty-five (45) calendar days after receiving receipt of the Claim Notice, the indemnified party against which such Claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's reasonable cost and expense, the defense, compromise or settlement of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice Claim on behalf of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, and for the account and risk of the indemnifying party; provided, -------- however, that such Claim shall not be compromised or (v) if such settled without the written ------- consent of the indemnifying party. In the event the indemnified party reasonably shall have concluded (upon advice assumes the defense of its counsel) that, with respect to such claimsthe Claim, the indemnified party and will keep the indemnifying party may have differentreasonably informed of the progress of, conflictingand allow full participation in, or adverse legal positions or interests then, in any such casedefense, the indemnified party shall have the right to assume compromise or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforsettlement.

Defense of Claims. In the case of any claim for indemnification under Section 7.1, 7.2 or 7.3 arising from a claim of a third party (including the IRS or any governmental agency), an indemnified party shall give prompt written notice and, subject to the following sentence, in no case later than twenty (20) days after the indemnified party's receipt of notice of such claim, to the indemnifying party (and, if the indemnifying party is any of the Sellers, to the Sellers' Representative and the Escrow Agent) of any claim, suit or demand of which such indemnified party has Knowledge and as to which it may request indemnification hereunder. The failure to give such notice shall not, however, relieve the indemnifying party of its indemnification obligations except to the extent that the indemnifying party is actually harmed thereby. The indemnifying party shall have the right to defend and to direct the defense against any such action claim, suit or proceeding is brought demand (including, without limitation, ERISA claims, tax claims and claims relating to Sections 7.3(B) and 7.3(F)), in its name and at its expense, and with counsel selected by the indemnifying party unless such claim, suit or demand seeks an injunction or other equitable relief against an the indemnified party; provided, except as provided for however, the indemnifying party shall not have the right to defend or direct the defense of any such claim, suit or demand if it refuses to acknowledge fully its obligations to the indemnified party or contests, in whole or in part, its indemnification obligations therefor. If the indemnifying party elects, and is entitled, to compromise or defend such claim, it shall within 30 days (or sooner, if the nature of the claim so requires) notify the indemnified party of its intent to do so, and the indemnified party shall, at the request and expense of the indemnifying party, cooperate in the next defense of such claim, suit or demand. If the indemnifying party elects not to compromise or defend such claim, fails to notify the indemnified party of its election as herein provided or refuses to acknowledge or contests its obligation to indemnify under this Agreement, the indemnified party may pay, compromise or defend such claim. Except as set forth in the immediately preceding sentence, the indemnifying party shall have no indemnification obligations with respect to any such claim, suit or demand which shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval settled by the indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld or delayed); provided, however, that notwithstanding the foregoing, the indemnified party shall not be required to refrain from paying any claim which has matured by a court judgment or decree, unless an appeal is duly taken therefrom and exercise thereof has been stayed, nor shall it be required to refrain from paying any claim where the delay in paying such counselclaim would result in the foreclosure of a lien upon any of the property or assets then held by the indemnified party or where any delay in payment would cause the indemnified party material economic loss. The indemnifying party's right to direct the defense shall include the right to compromise or enter into an agreement settling any claim by a third party; provided that no such compromise or settlement shall obligate the indemnified party to agree to any settlement which requires the taking of any action by the indemnified party other than the delivery of a release, except with the consent of the indemnified party (such consent to be withheld or delayed only for a good faith reason). 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 shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expenseunreasonably withheld or delayed. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the The indemnified party shall have the right to assume participate in the defense of any claim, suit or continue its own defense and demand with counsel selected by it subject to the indemnifying party party's right to direct the defense. The fees and disbursements of such counsel shall be liable for at the expense of the indemnified party; provided, however, that, in the case of any claim, suit or demand which seeks injunctive or other equitable relief against the indemnified party, the fees and expenses therefordisbursements of such counsel shall be at the expense of the indemnifying party.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "CLAIM") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, except the party claiming such indemnification shall give written notice (a "CLAIM NOTICE") to the indemnifying party as provided soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for in which indemnification may be sought under this Section 9.7. If any lawsuit or enforcement action is filed against any party entitled to the next sentencebenefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as reasonably practicable. The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except, and only, to the extent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available toto the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not available toto be unreasonably withheld. In the event the indemnifying party elects to assume control of the defense and investigation of such lawsuit in accordance with this Section 9.7(d), the indemnified party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the indemnifying party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted shall (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party; PROVIDED, HOWEVER, that such Claim shall not be compromised or (v) if such indemnified party reasonably settled without the written consent of the indemnifying party, which consent shall have concluded (upon advice of its counsel) that, with respect to such claims, not be unreasonably withheld. In the event the indemnified party and assumes the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such casedefense of the claim, the indemnified party shall have keep the right to assume indemnifying party reasonably informed of the progress of any such defense, compromise or continue its own defense and the settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 9.7 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages that are subject to indemnification under this Section 9.7 by reason of such settlement or judgment.

Defense of Claims. In case any such action or proceeding (i) If a claim for Damages (a "CLAIM") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 9.1, give written notice (a "CLAIM NOTICE") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.2. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderenforcement action, (iii) then the indemnifying party fails shall be entitled, if it so elects at its own cost, risk and expense, (a) to take control of the defense and investigation of such lawsuit or enforcement action, (b) to employ and engage attorneys of its own choice to handle and defend diligently the same unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such (including any impleaded parties) include both the indemnifying party and the indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice , and, in the good faith determination of its counsel) that there may be one or more legal defenses available counsel to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such , notice of which shall be promptly delivered to the indemnified party reasonably shall have concluded (upon advice party, there is an actual conflict of its counsel) that, with respect to such claims, interest between the indemnified party and the indemnifying party recognized under applicable Rules of Professional Responsibility (such determination not to consider the Claim for Damages the indemnified party has asserted or may have different, conflicting, or adverse legal positions or interests thenultimately assert against the indemnifying party), in any which event the indemnified party shall be entitled, at the indemnifying party's reasonable cost, risk and expense, to separate counsel of its own choosing, and (c) to compromise or settle such caselawsuit or enforcement action, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld, delayed or conditioned. If the indemnifying party fails to assume the defense of such lawsuit or enforcement action within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party shall against which such lawsuit or enforcement action has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party's cost and expense, the defense, compromise or continue settlement of such lawsuit or enforcement action on behalf of and for the account and risk of the indemnifying party; PROVIDED, HOWEVER, that such lawsuit or enforcement action shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, delayed or conditioned. In the event the indemnified party assumes the defense of the lawsuit or enforcement action, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement; PROVIDED, HOWEVER, that the indemnifying party may, at its own defense cost, participate (by observation and suggestion only) in negotiations, arbitrations and the investigation, trial and defense of any such lawsuit or enforcement action and any appeal arising therefrom. The indemnifying party shall be liable for any fees settlement of any lawsuit or enforcement action effected pursuant to and expenses thereforin accordance with this Section 9.2 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.2. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party has been damaged by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) the indemnifying party fails shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice, but, in any event, reasonably acceptable to the indemnified party, to handle and defend diligently the same unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (ivincluding any impleaded parties) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available toto the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such lawsuit or action, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not available toto be unreasonably withheld. If the indemnifying party fails to assume the defense of such lawsuit or action within 15 calendar days after receipt of the Claim Notice, the indemnified party against which such lawsuit or action has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such lawsuit or action on behalf of and for the account and risk of the indemnifying party; provided, however, that such lawsuit or (v) if such action shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. If the indemnified party reasonably shall have concluded (upon advice settles or compromises such lawsuit or action without the prior written consent of its counsel) thatthe indemnifying party, the indemnifying party will bear no liability hereunder for or with respect to such claimslawsuit or action. In the event the indemnified party assumes the defense of the lawsuit or action, the indemnified party and will keep the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in reasonably informed of the progress of any such casedefense, the indemnified party shall have the right to assume compromise or continue its own defense and the settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 9.2 and for any final judgment (subject to any right of appeal) and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case If any Action or Proceeding is filed or initiated against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within ten (10) days after the service of the citation or summons); provided, however, that the failure of any indemnification -------- ------- hereunder except to the extent that the indemnifying party demonstrates actual damage caused by such action or proceeding is brought against an indemnified partyfailure. After such notice, except as provided for in the next sentence, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources terms of its indemnity hereunder in connection with such Action or Proceeding, then the indemnifying party shall be entitled, if it so elects, to take control of the defense and investigation of such Action or Proceeding and to employ and engage attorneys of its own choice to handle and defend against the claim or proceeding same, such attorneys to be reasonably satisfactory to the indemnified party, at the indemnifying party's cost, risk and fulfill its indemnification obligations hereunder, expense (iiiunless (i) the indemnifying party fails has failed to defend diligently assume the action or proceeding within 10 days after receiving notice defense of such failure from Action or Proceeding or (ii) the named parties to such Action or Proceeding include both of the indemnifying party and the indemnified party; (iv) such , and the indemnified party reasonably shall have concluded (upon advice of and its counsel) counsel determine in good faith that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have differentand that joint representation would be inappropriate), conflictingand to compromise or settle such Action or Proceeding, which compromise or adverse legal positions or interests then, in any such case, settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. The indemnified party shall have may withhold such consent if such compromise or settlement would adversely affect the right conduct of business or requires less than an unconditional release to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor.obtained. If

Defense of Claims. In case If any lawsuit or enforcement action is ----------------- filed against any Party entitled to the benefit of indemnity hereunder, written notice thereof describing such lawsuit or enforcement action in reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount of indemnification the indemnified Party is entitled to receive hereunder), shall be given to the indemnifying Party as promptly as practicable (and in any event within ten (10) days, after the service of the citation or summons) ("Notice of Action"); provided that the failure of any indemnified Party to give timely notice shall not affect its rights to indemnification hereunder to the extent that the indemnified Party demonstrates that the amount the indemnified Party is entitled to recover exceeds the actual damages to the indemnifying Party caused by such failure to so notify within ten (10) days. The indemnifying Party may elect to settle or defend any such action or proceeding is brought against an asserted liability and to assume all obligations contained in this Section 7.3 to indemnify the indemnified party, except as provided for in Party by a delivery of notice of such election ("Notice of Election") within ten (10) days after delivery of the next sentenceNotice of Action. Upon delivery of the Notice of Election, the indemnifying party Party shall be entitled to participate therein and assume take control of the defense thereofand investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, jointly with any other at the indemnifying partyParty's sole cost, risk and expense, and such indemnified Party shall cooperate in all reasonable respects, at the indemnifying Party's sole cost, risk and expense, with counsel reasonably satisfactory to the indemnifying Party and such indemnified partyattorneys in the investigation, trial, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsellawsuit or action and any appeal arising therefrom; provided, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereofhowever, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If that (i) the indemnifying party fails to notify the ----------------- indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party Party shall have the right to assume or continue approve defense counsel selected by the indemnifying Party, which approval shall not be unreasonably withheld, and (ii) the indemnified Party may, at its own cost, risk and expense, participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If, however, the indemnified Party reasonably determines in its judgment that representation by the indemnifying Party's counsel of both the indemnifying Party and the indemnified Party would present such counsel with a conflict of interest, then such indemnified Party may employ separate counsel to represent or defend it in any such claim, action, suit or proceeding and the indemnifying party Party shall be liable for any pay the fees and expenses therefordisbursements of such separate counsel. Whether or not the indemnifying Party chooses to defend or prosecute any such claim, suit, action or proceeding, all of the Parties hereto shall cooperate in the defense or prosecution thereof. If the Notice of Election is delivered to the indemnified Party, the indemnified Party shall not pay, settle or compromise such claim without the indemnifying Party's consent, which consent shall not be unreasonably withheld. If the indemnifying Party elects not to defend the claim of the indemnified Party or does not deliver to the indemnified Party a Notice of Election within ten (10) days after delivery of the Notice of Action, the indemnified Party may, but shall not be obligated to defend, or the indemnified Party may compromise or settle (exercising reasonable business judgment) the claim or other matter on behalf, for the account, and at the risk, of the indemnifying Party.

Defense of Claims. In case any such action or proceeding is brought against an indemnified party, except as provided for in the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal The Registrant has requested confidential treatment of this draft registration statement and associated correspondence pursuant to Rule 83 of the Securities and Exchange Commission. defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor.

Defense of Claims. In case any such action or proceeding If a claim for Damages is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party entitled to such indemnifica tion shall give written notice to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.3. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen days after the service of the citation or summons); PROVIDED, that the failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice terms of its counsel) that there may be one indemnity hereunder in connection with such lawsuit or more legal defenses available to such indemnified party or other indemnified parties which are different than those available toaction, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and then the indemnifying party shall be liable entitled, if it so elects, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense provided that the indemnifying party and its counsel shall proceed with diligence and in good faith with respect thereto. The indemnified party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; PROVIDED, HOWEVER, that the indemnified party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If a tax audit is commenced or any tax is claimed for any fees period of the Company or its Subsidiary prior to the Closing Date, such tax audit or claim shall be treated as a lawsuit or enforcement action for purposes of this Section 10.3(c); PROVIDED, HOWEVER, that Sellers shall be solely responsible for all liabilities and expenses thereforarising therefrom, including, without limitation, taxes, interest and penalties, except to the extent of any reserves in respect of such taxes shown on the Closing Balance Sheet.

Defense of Claims. In case After the receipt of any such claim by, or the commencement of any action or proceeding is brought against an the indemnified party, except as provided for in the next sentenceindemnified party will, if a claim with respect thereto is to be made against any party obligated to provide indemnification pursuant to this Section 7, give notice of such claim or the commencement of such addition or proceeding. In the event of such notice, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, or settlement thereof with counsel of its own choosing, which counsel shall be reasonably satisfactory to such the indemnified party; provided, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counselhowever, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and that: (i) the indemnified party shall be entitled to participate in such defense participate, at its own expense. If (i) the indemnifying party fails to notify the indemnified party , in writing, within 15 days after the indemnified party has given notice of the any such action or proceeding, that the indemnifying party will indemnify the indemnified party from proceeding or in any negotiations or proceedings to settle or otherwise eliminate any claim for which indemnification is being sought; and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails shall not be entitled to provide settle, compromise, decline to appeal, or otherwise dispose of such claim, action, or proceeding without the consent of the indemnified party if such claim, action, or proceeding, in the reasonable judgment of the indemnified party either (A) involves a request for relief other than money damages which the indemnifying party would be required to completely indemnify against hereunder or (B) in the event of an adverse ruling, could have a material adverse effect on the indemnified party. In the event that the indemnifying party does not assume the defense or settlement of any claim, action, or proceeding, the indemnified party shall, at the expense of the indemnifying party, conduct the investigation, defense, trial, and appeal of, and/or may settle any such claim, action, or proceeding, and the indemnified party's good faith determination, in its sole discretion, with evidence acceptable respect to the conduct, settlement, judgment, order or other disposition of any claim, action, or proceeding shall be final and binding upon the indemnifying party for purposes of this Agreement. Any claims, legal fees, or other reasonable and actual costs and expenses paid or incurred by the indemnified party shall be paid to the indemnified party that by the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, within thirty (iii30) days after receipt by the indemnifying party fails to defend diligently of the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable for any fees and expenses therefor's itemized invoice.

Defense of Claims. In case If a claim for Losses (a "Claim") is to be made by an Indemnified Party, such Indemnified Party shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after such Indemnified Party becomes aware of any such fact, condition or event which may give rise to Losses for which indemnification may be sought under this Section 9. If any lawsuit or enforcement action is filed against any Indemnified Party hereunder, notice thereof (a "Third Party Notice") shall be given to the indemnifying party as promptly as practicable (and in any event within five (5) calendar days after the service of the citation or proceeding is brought against an summons). The failure of any indemnified partyparty to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After receipt of a Third Party Notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys approved by the Indemnified Party (such approval not to be unreasonably withheld) to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified include both the indemnifying party reasonably shall have concluded (upon advice of its counsel) and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which Indemnified Party that are different than from or additional to those available to, or not available to, to the indemnifying party, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party, such consent not to be unreasonably withheld. The Indemnified Party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; and the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom and appoint its own counsel therefor, at its own cost. The parties shall also cooperate with each other in any notifications to insurers. If the indemnifying party fails to assume the defense of such claim within fifteen (v15) if calendar days after receipt of the Third Party Notice, the Indemnified Party against which such indemnified party reasonably shall have concluded claim has been asserted will (upon advice of its counsel) that, with respect delivering notice to such claimseffect to the indemnifying party) have the right to undertake the defense, the indemnified party compromise or settlement of such claim and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue participate therein at its own cost; provided, however, that such claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. In the event the Indemnified Party assumes the defense and of the claim, the Indemnified Party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. Notwithstanding the foregoing, the indemnifying party shall not be liable for any the reasonable fees and expenses thereforof more than one separate firm of attorneys at any time for any and all Indemnified Parties (which firm shall be designated in writing by such Indemnified Party or Parties) in connection with any one such action or proceeding arising out of the same general allegations or circumstances.

Defense of Claims. In case connection with any such action claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is brought against an indemnified party, except as provided for in not a party to this Agreement (including the next sentenceHarley-Davidson Lawsuit), the indemnifying party shall be entitled to participate therein at its sole cost and assume the defense thereof, jointly with any other indemnifying party, expense and with counsel reasonably satisfactory to such the indemnified party may, upon written notice to the indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of any such counsel, the indemnifying party shall not be liable to such indemnified party for any claim or legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If proceeding if (ia) the indemnifying party fails acknowledges to notify the indemnified party in writing, within 15 fifteen (15) days after receipt of notice from the indemnified party has given notice of the action or proceedingparty, that the indemnifying party will its obligations to indemnify the indemnified party from and against with respect to all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the elements of such claim, (iib) the indemnifying party fails to provide provides the indemnified party with evidence reasonably acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the such third-party claim or proceeding and fulfill its indemnification obligations hereunder, (iiic) the indemnifying third-party fails to defend diligently claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the action or proceeding within 10 days after receiving notice third-party claim is not in the good faith judgment of such failure from such the indemnified party; (iv) such , likely to establish a pattern or practice adverse to the continuing business interests of the indemnified party. The indemnified party reasonably shall have concluded be entitled to participate in (upon advice but not control) the defense of any such action, with its counsel) counsel and at its own expense; provided, however, that if there may be are one or more legal defenses available to such the indemnified party or other indemnified parties which are different than that conflict with those available toto the indemnifying party, or if the indemnifying party fails to take reasonable steps necessary to defend diligently the claim after receiving notice from the indemnified party that it believes the indemnifying party has failed to do so, the indemnified party may assume the defense of such claim; provided, further, that the indemnified party may not available tosettle such claim without the prior written consent of the indemnifying party, which consent may not be unreasonably withheld. If the indemnified party assumes the defense of the claim, the indemnifying party; or (v) if such party shall reimburse the indemnified party reasonably shall have concluded (upon advice for the reasonable fees and expenses of its counsel) that, with respect to such claims, counsel retained by the indemnified party and the indemnifying party may have differentshall be entitled to participate in (but not control) the defense of such claim, conflicting, with its counsel and at its own expense. If the indemnifying party thereafter seeks to question the manner in which the indemnified party defended such third party claim or adverse legal positions the amount or interests then, in nature of any such casesettlement, the indemnified indemnifying party shall have the right burden to assume prove by a preponderance of the evidence that the indemnified party did not defend or continue its own settle such third party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense and the indemnifying party shall be liable for of any fees and expenses thereforaction, suit or proceeding, whether or not subject to indemnification hereunder.

Defense of Claims. In the case of any claim for indemnification under Sections 10.1, 10.2 or 10.3 (and subject to the provisions of Section 11.7 relating to Tax audits and examinations) arising from a claim of a third party (including the IRS or any other Governmental Authority), an indemnified party shall give prompt written notice and, subject to the following sentence, in no case later than ten (10) calendar days after the indemnified party’s receipt of notice of such claim, to the indemnifying party of any claim, suit or demand of which such indemnified party has Knowledge and as to which it may request indemnification hereunder. The failure to give such notice shall not, however, relieve the indemnifying party of its indemnification obligations except to the extent that the indemnifying party is actually harmed thereby. The indemnifying party shall have the right to defend and to direct the defense against any such action claim, suit or proceeding is brought demand in its name and at its expense, and with counsel selected by the indemnifying party unless such claim, suit or demand seeks an injunction or other equitable relief against an the indemnified party; provided, except however, the indemnifying party shall not have the right to defend or direct the defense of any such claim, suit or demand if it refuses to acknowledge fully its obligations to the indemnified party or contests, in whole or in part, its indemnification obligations therefor or if the amount of such claim, suit or demand exceeds the limitations on indemnification set forth in Section 10.5(b) or Section 10.5(c), as provided for applicable. If the indemnifying party elects, and is entitled, to compromise or defend such claim, it shall within ten (10) calendar days (or sooner, if the nature of the claim so requires) notify the indemnified party of its intent to do so, and the indemnified party shall, at the request and expense of the indemnifying party, cooperate in the next defense of such claim, suit or demand. If the indemnifying party elects not to compromise or defend such claim, fails to notify the indemnified party of its election as herein provided or refuses to acknowledge or contests its obligation to indemnify under this Agreement, the indemnified party may pay, compromise or defend such claim. Except as set forth in the immediately preceding sentence, the indemnifying party shall have no indemnification obligations with respect to any such claim, suit or demand which shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval settled by the indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld or delayed); provided, however, that notwithstanding the foregoing, the indemnified party shall not be required to refrain from paying any claim which has matured by a court judgment or decree, unless an appeal is duly taken therefrom and exercise thereof has been stayed, nor shall it be required to refrain from paying any claim where the delay in paying such counselclaim would result in the foreclosure of a lien upon any of the property or assets then held by the indemnified party or where any delay in payment would cause the indemnified party material economic loss. The indemnifying party’s right to direct the defense shall include the right to compromise or enter into an agreement settling any claim by a third party; provided that no such compromise or settlement shall obligate the indemnified party to agree to any settlement which requires the taking of any action by the indemnified party other than the delivery of a release, except with the consent of the indemnified party (such consent not to be unreasonably withheld or delayed). 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 written objection of the indemnified party; provided, however, that consent by the indemnified party to settlement or compromise shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expenseunreasonably withheld or delayed. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the The indemnified party shall have the right to assume participate in the defense of any claim, suit or continue its own defense and demand with counsel selected by it subject to the indemnifying party party’s right to direct the defense. The fees and disbursements of such counsel shall be liable for at the expense of the indemnified party; provided, however, that, in the case of any claim, suit or demand which seeks injunctive or other equitable relief against the indemnified party, the fees and expenses therefordisbursements of such counsel shall be at the expense of the indemnifying party.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 9.1 hereof, give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 9.2. Such Claim Notice shall specify the nature and amount of the Claim asserted, if actually known to the party entitled to indemnification hereunder. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (ivincluding any impleaded parties) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available toto the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not available toto be unreasonably withheld. If the indemnifying party fails to assume the defense of such Claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such Claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or (v) if such settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the indemnified party reasonably shall have concluded (upon advice assumes the defense of its counsel) that, with respect to such claimsthe Claim, the indemnified party and will keep the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in reasonably informed of the progress of any such casedefense, the indemnified party shall have the right to assume compromise or continue its own defense and the settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 9.2 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case any such action or proceeding If a claim for losses (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Losses for which indemnification may be sought under this Article IX. If any lawsuit or enforcement Action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderAction, (iii) then the indemnifying party fails shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or Action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the action same, unless the named parties to such Action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, in which event the indemnified party and shall be entitled, at the indemnifying party may party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such Claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld; provided, however, if the remediation or resolution of any such Claim will occur on or at any Facility assumed by Buyer under this Agreement or the Transition Agreement or is reasonably expected to have differenta direct material adverse effect on the indemnified party's business operations, conflicting, or adverse legal positions or interests then, in any such casenotwithstanding the foregoing, the indemnified party shall be entitled to control such remediation or resolution, including, without limitation, to take control of the defense and investigation of such lawsuit or Action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim; provided, however, that such Claim shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed. If the indemnifying party fails to assume the defense of such Claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such Claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party's cost and expense, the defense, compromise or continue its own settlement of such Claim on behalf of and for the account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld or delayed. In the event the indemnified party assumes the defense and of the Claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any Action effected pursuant to and expenses thereforin accordance with this Article IX and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Losses by reason of any settlement or judgment. In no event shall an indemnifying party be liable for any settlement of any Claim effected without its written consent, but if settled with its consent (which consent shall not be unreasonably withheld or delayed), the indemnifying party agrees to indemnify and hold the parties indemnified hereunder harmless from and against any Losses by reason of such settlement.

Defense of Claims. In case If any such action or proceeding is (including any governmental investigation or inquiry) shall be brought or asserted or threatened to be brought or asserted against an indemnified party in respect of which indemnity may be sought from an indemnifying party, except as provided for such indemnified party shall promptly notify the indemnifying party in the next sentencewriting, and the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly including the employment of counsel satisfactory to such indemnified party and the payment of all expenses. The indemnifying party shall not, except with any other indemnifying the written consent of the indemnified party, with consent to the entry of a judgment or settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of an unconditional release from all liability in respect of such third party claim or demand. The indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expense of such indemnified party, unless: (a) the indemnifying party has agreed to pay such fees and expenses; (b) the indemnifying party shall have failed to assume the defense of such action or proceeding or shall have failed to employ counsel reasonably satisfactory to such indemnified party in any such action or proceeding; or (c) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) been advised by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; or party (v) in which case, if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and notifies the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such casewriting that it elects to employ separate counsel at the expense of the indemnifying party, the indemnified indemnifying party shall not have the right to assume the defense of such action or continue its own defense and proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for such indemnified party and any other indemnified parties, which firm shall be designated in writing by such indemnified parties). The indemnifying party shall not be liable for any fees settlement of any such action or proceeding effected without its written consent, but if settled with its written consent or if there be a final judgment for the plaintiff in any such action or proceeding, the indemnifying party agrees to indemnify and expenses thereforhold harmless such indemnified parties from and against any loss or liability by reason of such settlement or judgment.

Defense of Claims. In case If a claim for Losses (a “Claim”) is to be made by an Indemnified Party, such Indemnified Party shall give written notice (a “Claim Notice”) to the indemnifying party as soon as practicable after such Indemnified Party becomes aware of any such fact, condition or event which may give rise to Losses for which indemnification may be sought under this ARTICLE VIII. If any lawsuit or enforcement action is filed against any Indemnified Party hereunder, notice thereof (a “Third Party Notice”) shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or proceeding is brought against an summons). The failure of any indemnified partyparty to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After receipt of a Third Party Notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same, at the indemnifying party’s cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party. The Indemnified Party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; and the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom and appoint its own counsel therefor, at its own cost. The parties shall also cooperate with each other in any notifications to insurers. If the indemnifying party fails to assume the defense of such claim within fifteen (v15) if calendar days after receipt of the Third Party Notice, the Indemnified Party against which such indemnified party reasonably shall have concluded claim has been asserted will (upon advice of its counsel) that, with respect delivering notice to such claimseffect to the indemnifying party) have the right to undertake the defense, the indemnified party compromise or settlement of such claim and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue participate therein at its own cost. In the event the Indemnified Party assumes the defense and of the claim, the Indemnified Party will keep the indemnifying party shall be liable for reasonably informed of the progress of any fees and expenses thereforsuch defense, compromise or settlement.

Defense of Claims. In case If any third party claim is made against any indemnitee that, if sustained, would give rise to indemnification liability for an indemnitor under this Section 9, then the indemnitee shall promptly cause notice of such claim to be delivered to the indemnitor (provided that the failure to provide such notice shall not release, waive or otherwise affect the indemmnitor’s obligations with respect to such claim except to the extent the indemnitor is actually prejudiced in any material respect as a result of such failure). The indemnitor shall have the right, at its sole cost and expense, to defend against, conduct and control any action or proceeding is brought against an indemnified partywith respect to such third party claim which involves claims for monetary damages only, except as provided for in the next sentence, the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with through counsel of its own choice reasonably satisfactory to such indemnified partythe indemnitee, and after notice from unless the indemnifying party nature of the claim creates an ethical conflict or otherwise makes it inadvisable in the good faith determination of counsel to such indemnified party of its election so the indemnitee for the same counsel to assume represent the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, indemnitor and the indemnified party shall be entitled to participate indemnitee, in such defense at which case the indemnitee may retain its own expensecounsel to defend such claim at the sole cost and expense of the indemnitor. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources indemnitor elects to defend against the third party claim, then it must so notify the indemnitee in writing within ten Business Days of receipt of the indemnitee’s notice thereof (which notice must include an acknowledgement of indemnitor that the claim or proceeding is within the scope of and fulfill its subject to indemnification obligations hereunder), (iii) failing which, the indemnifying party fails to indemnitee may defend diligently the against, conduct and control any action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claimsclaim with counsel of its own choosing, at the indemnified sole cost and expense of the indemnitor. If the indemnitor shall timely assume the defense of the third party claim, then it shall diligently pursue the defense of such claim and keep the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, indemnitee reasonably apprised of the indemnified party status thereof (provided that the indemnitee shall have the right to assume or continue participate in, but not control, the defense of such claim with counsel of its own choosing, at its sole cost and expense). Neither the indemnitor nor the indemnitee, as the case may be, may compromise or settle any third party claim against which it is defending without the prior written consent of the indemnitee or the indemnitor, as the case may be (which consent shall not be unreasonably withheld, conditioned or delayed), unless the claim is solely for money damages and requires no admission of wrongdoing. The Parties shall reasonably cooperate in the defense and the indemnifying or prosecution of any third party shall be liable for any fees and expenses thereforclaim.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be ----------------- made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall, subject to Section 10.2, give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.3. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates prejudice caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice (which shall be reasonably acceptable to the indemnified party) to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and in which case the indemnifying party may shall engage separate counsel (reasonably acceptable to the indemnified party) to represent the indemnified party, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld; provided, however, if the remediation or resolution of any such Claim will occur on or at any Facility or is reasonably expected to have differenta Material Adverse Effect on the indemnified party's business operations, conflicting, or adverse legal positions or interests then, in any such casenotwithstanding the foregoing, the indemnified party shall be entitled to control such remediation or resolution, including without limitation to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim. If the indemnifying party fails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume undertake, at the indemnifying party's cost and expense, the defense, compromise or continue its own settlement of such claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party assumes the defense and of the claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 10.3 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, except the party claiming such indemnification shall, subject to Section 10.3, give written notice (a "Claim Notice") to the indemnifying party as provided soon as practicable after the party entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.4. With respect to any claim by a third party that gives rise to or could give rise to indemnification hereunder, if any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the next sentenceservice of the citation or summons). After such notice, the indemnifying party shall be entitled, if it so elects at its own cost, risk and expense (provided, that the indemnified party agrees to repay such expenses if it is ultimately determined that such indemnified party was not entitled to participate therein and assume indemnification), (i) to take control of the defense thereofand investigation of such lawsuit or action, jointly with any other indemnifying party, with counsel reasonably satisfactory (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such indemnified party, and after notice from action or proceeding include both the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after and the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, been advised in the nature of, or caused writing by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to the indemnified party that the indemnifying party will have the financial resources to defend against the claim or proceeding and fulfill its indemnification obligations hereunder, (iii) the indemnifying party fails to defend diligently the action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party; or (v) if such , in which event the indemnified party reasonably shall have concluded (upon advice be entitled to a single separate counsel of its counselown choosing, and (iii) thatto compromise or settle such claim, which compromise or settlement shall be made only with respect the written consent of the indemnified party, such consent not to be unreasonably withheld. If the indemnifying party fails to assume the defense of such claimsclaim within fifteen (15) calendar days after receipt of the Claim Notice, the indemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party. In the event the indemnified party assumes the defense of the claim, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement, and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right option to assume or continue its own defense and the control of such defense. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 10.4 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Claims. In case any such action or proceeding If a claim for Damages (a "Claim") is brought to be made by a party entitled to indemnification hereunder against an indemnified the indemnifying party, the party claiming such indemnification shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after the party claiming to be entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.4. Such Claim Notice shall include a reasonable description of the nature and amount of the Damages suffered and the basis therefore. If any lawsuit or enforcement action is filed against any party entitled to the benefit of indemnity hereunder, written notice thereof shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage or prejudice caused by such failure. After such notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party notify in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable to writing the indemnified party that the indemnifying party will have so elects, then the financial resources indemnifying party shall be entitled, at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys reasonably acceptable to the indemnified party to handle and defend against the claim same unless the named parties to such action or proceeding include both the indemnifying party and fulfill the indemnified party and the indemnified party has been advised in writing by counsel that in the opinion of such counsel there is an actual or potential conflict of interest in representing both such indemnified party and the indemnifying party, then the indemnified party shall be entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its indemnification obligations hereunderown choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld. If the indemnifying party fails to defend diligently assume the action or proceeding defense of such claim within 10 fifteen (15) calendar days after receiving receipt of the Claim Notice, the indemnified party against which such Claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice claim on behalf of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, and for the account and risk of the indemnifying party; PROVIDED, HOWEVER, that such Claim shall not be compromised or (v) if such settled without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. In the event the indemnified party reasonably shall have concluded (upon advice assumes the defense of its counsel) that, with respect to such claimsthe claim, the indemnified party and will keep the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in reasonably informed of the progress of any such casedefense, compromise or settlement. In addition, upon assumption of control of the defense, the indemnifying party will not be liable to the indemnified party hereunder for any legal or other expenses subsequently incurred in connection with the defense of the action. Any party who has not assumed control of the defense of any action shall have the right duty to assume or continue its own defense and cooperate with the party which assumed such defense. The indemnifying party shall be liable for any fees settlement of any action effected pursuant to and expenses thereforin accordance with this Section 10.4 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment, subject to the terms of this Section 10.4. The indemnifying party shall have fifteen days to provide the indemnified party with written notice of the indemnifying party's objection to the claims set forth in a Claim Notice or the indemnifying party will be deemed to have agreed that it is obligated to indemnify the indemnified 60 party for the full amount of the Damages specified in the Claim Notice. Any such objections that cannot be resolved by the parties within fifteen days of the receipt by the indemnified party of such objection notice may be submitted by any party to arbitration pursuant in accordance with Section 12.13.

Defense of Claims. In case If a claim for Losses (a "Claim") is to be made by an Indemnified Party, such Indemnified Party shall give written notice (a "Claim Notice") to the indemnifying party as soon as practicable after such Indemnified Party becomes aware of any such fact, condition or event which may give rise to Losses for which indemnification may be sought under this Section 5. If any lawsuit or enforcement action is filed against any Indemnified Party hereunder, notice thereof (a "Third Party Notice") shall be given to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or proceeding is brought against an summons). The failure of any indemnified partyparty to give timely notice hereunder shall not affect rights to indemnification hereunder, except as provided for in to the next sentenceextent that the indemnifying party demonstrates actual damage caused by such failure. After receipt of a Third Party Notice, if the indemnifying party shall be entitled to participate therein and assume the defense thereof, jointly with any other indemnifying party, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by the indemnified party of such counsel, the indemnifying party shall not be liable to such indemnified party for any legal expenses subsequently incurred by such indemnified party acknowledge in connection with the defense thereof, other than costs of investigation, and the indemnified party shall be entitled to participate in such defense at its own expense. If (i) the indemnifying party fails to notify the indemnified party in writing, within 15 days after the indemnified party has given notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable writing to the indemnified party that the indemnifying party will have shall be obligated under the financial resources to defend against the claim terms of its indemnity hereunder in connection with such lawsuit or proceeding and fulfill its indemnification obligations hereunderaction, (iii) then the indemnifying party fails shall be entitled, if it so elects, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend diligently the same, at the indemnifying party's cost, risk and expense unless the named parties to such action or proceeding within 10 days after receiving notice of such failure from such indemnified party; (iv) such include both the indemnifying party and the indemnified party reasonably shall have concluded (upon advice of its counsel) and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party or other indemnified parties which that are different than from or additional to those available to, or not available to, to the indemnifying party, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the Indemnified Party. The Indemnified Party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; and the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom and appoint its own counsel therefor, at its own cost. The parties shall also cooperate with each other in any notifications to insurers. If the indemnifying party fails to assume the defense of such claim within fifteen (v15) if calendar days after receipt of the Third Party Notice, the Indemnified Party against which such indemnified party reasonably shall have concluded claim has been asserted will (upon advice of its counsel) that, with respect delivering notice to such claimseffect to the indemnifying party) have the right to undertake the defense, the indemnified party compromise or settlement of such claim and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such case, the indemnified party shall have the right to assume or continue participate therein at its own cost. In the event the Indemnified Party assumes the defense and of the claim, the Indemnified Party will keep the indemnifying party shall be liable for reasonably informed of the progress of any fees and expenses thereforsuch defense, compromise or settlement.

Defense of Claims. In case connection with any claim that may give rise to indemnity under this Section 7 resulting from or arising out of any claim or Proceeding against an Indemnitee by a person or entity that is not a party hereto, the Indemnifying Party may but shall not be obligated to (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such action claim or proceeding if the Indemnifying Party with respect to such claim or Proceeding acknowledges to the Indemnitee the Indemnitee's right to indemnity pursuant hereto to the extent provided herein (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, satisfactory to such Indemnitee, that the Indemnifying Party will be financially able to satisfy such claim to the extent provided herein if such claim or Proceeding is brought decided adversely; provided, however, that nothing set forth herein shall be deemed to require the Indemnifying Party to waive any crossclaims or counterclaims the Indemnifying Party may have against an indemnified party, except as provided the Indemnified Party for in the next sentence, the indemnifying party damages. The Indemnified Party shall be entitled to participate therein retain separate counsel, reasonably acceptable to the Indemnifying Party, if the Indemnified Counsel shall determine, upon the written advice of counsel, that claims of or defenses available to the Indemnifying Party and assume the Indemnified Party in connection with such Proceeding may differ. The Indemnifying Party shall be obligated to pay the reasonable fees and expenses of such separate counsel to the extent the Indemnified Party is entitled to indemnification by the Indemnifying Party with respect to such claim or Proceeding under this Section 7.4. If the Indemnifying Party assumes the defense thereofof any such claim or Proceeding, jointly with any other indemnifying party, with the Indemnifying Party shall select counsel reasonably satisfactory acceptable to such indemnified party, and after notice from the indemnifying party Indemnitee to such indemnified party of its election so to assume conduct the defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and approval by shall at all times diligently and promptly pursue the indemnified party resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim or Proceeding in accordance with this Section 7.4, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, but only with the prior written consent of such counselIndemnitee, the indemnifying party which consent shall not be liable unreasonably withheld; provided, however, that the Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided, further, that the Indemnifying Party shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, directors, officers, employees and agents with respect to such indemnified party for claim, including any legal expenses subsequently incurred by such indemnified party in connection with the defense reasonably foreseeable collateral consequences thereof, other than costs of investigation, and the indemnified party . Such Indemnitee shall be entitled to participate in (but not control) the defense of any such defense action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party in the defense of any claim or Proceeding being defended by the Indemnifying Party pursuant to this Section 7.4. If (i) the indemnifying party fails to notify Indemnifying Party does not assume the indemnified party defense of any claim or Proceeding resulting therefrom in writingaccordance with the terms of this Section 7.4, within 15 days such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or proceeding after the indemnified party has given giving notice of the action or proceeding, that the indemnifying party will indemnify the indemnified party from and against all Losses the indemnified party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (ii) the indemnifying party fails to provide the indemnified party with evidence acceptable same to the indemnified party that Indemnifying Party, on such terms as such Indemnitee may deem appropriate, but only with the indemnifying party will have prior written consent of Indemnitee which consent shall not be unreasonably withheld. If any Indemnifying Party seeks to question the financial resources to defend against the manner in which such Indemnitee defended such claim or proceeding and fulfill its indemnification obligations hereunder, (iii) Proceeding or the indemnifying party fails to defend diligently the action amount of or proceeding within 10 days after receiving notice nature of such failure from such indemnified party; (iv) such indemnified party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such indemnified party or other indemnified parties which are different than those available to, or not available to, the indemnifying party; or (v) if such indemnified party reasonably shall have concluded (upon advice of its counsel) that, with respect to such claims, the indemnified party and the indemnifying party may have different, conflicting, or adverse legal positions or interests then, in any such casesettlement, the indemnified party such Indemnifying Party shall have the right burden to assume prove by a preponderance of the evidence that such Indemnitee did not defend such claim or continue its own defense and the indemnifying party shall be liable for any fees and expenses thereforProceeding in a reasonably prudent manner.