Common use of Defense of Claims Clause in Contracts

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeIxxxxxxxxx, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her Indemnitee that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which the Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withholdwithhold its, condition his or delay its her consent to any proposed settlement; provided that Indemnitee may withhold his or her consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will shall be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable suchIndemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is shall be using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will shall have the right to control the defense of such Indemnifiable Claim and will shall have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will shall limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will shall not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has shall have assumed and of which the Company is shall be using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeXxxxxxxxxx, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company Company, or any subsidiary of the Company, and Indemnitee Indemnitee, and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the CompanyCompany or such subsidiary, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event to which Indemnitee is, was or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee. In no event shall Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, or (d) Indemnitee concludes that such counsel has failed, or is failing, to adequately protect the interests of the Indemnitee after written notice to such counsel and the Company explaining in reasonable detail the basis for such conclusion, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to which Event that the Indemnitee is, is or could have been, been a party to, unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition withhold its or delay its his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, (c) if there has been a Change of Control, or (d) the Company shall not in fact have employed counsel to assume the defense of the Indemnifiable Claim, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent, which shall not be unreasonably withheld; provided, however, that if a Change of Control has occurred, the Company shall be liable for indemnification of the Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. The Company will not, shall not settle any Indemnifiable Claim in any manner that would impose any Losses on the Indemnitee without the Indemnitee’s prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteeconsent.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the The Company will be entitled to participate in the defense Proceeding at its own expense. Upon the delivery of any Indemnifiable Claim or written notice by the Company to Indemnitee, the Company shall be entitled to assume the defense thereof, of any Proceeding with counsel reasonably satisfactory consented to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending (such Indemnifiable Claim (other than consent not to be unreasonably withheld), except for such costs and expenses paid or incurred Proceeding brought by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with as to which the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes has reasonably concluded that there may be one or more legal defenses available a conflict of interest between the Company and the Indemnitee. After delivery of such notice, consent to him or her that are different from or in addition to those available to such counsel by Indemnitee and the retention of such counsel by the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid fees or expenses of counsel subsequently incurred by Indemnitee with respect to such Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in settlement respect of any threatened Proceeding at Indemnitee’s expense and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized in writing by the Company or pending Indemnifiable Claim effected without (B) Indemnitee shall have reasonably concluded upon the advice of counsel that there is a conflict of interest between the Company and Indemnitee in the conduct of the defense of such Proceeding, then in each such case the fees and expenses of Indemnitee’s counsel shall be at the Company’s prior expense. Neither party to this Agreement shall settle any Proceeding in any manner that would impose any Expense, judgment, fine, damages, penalty or limitation on Indemnitee without the other party’s written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that . The Company shall not be liable to indemnify the Indemnitee may withhold consent under this Agreement with regard to any Proceeding if the Company was not given a reasonable and timely opportunity to participate in the defense and/or settlement that does not provide a complete and unconditional release of Indemniteesuch Proceeding.

Defense of Claims. Except for The Indemnitor shall select (subject to the Indemnitee’s reasonable approval) the attorneys to defend any Indemnifiable Claim asserted by matter subject to indemnification and/or taking all actions necessary or in the right of the Company (as appropriate to which Indemnitee will resolve, defend, and/or settle such matters, and shall be entitled to exclusively control contest, on its own behalf and on the defense)Indemnitee’s behalf, the Company will existence or amount of any obligation, cost, expense, debt or liability giving rise to such claim. Nothing in this Section 9.5(b) shall be entitled to participate construed as prohibiting the Indemnitee from participating in the defense (which may include hiring its own counsel) in any matter subject to indemnification, as long as the Indemnitee does so at its own expense, unless and to the extent that the Indemnitor or an Affiliate is also subject to such claim and the Indemnitee has determined in good faith that the Indemnitor has a conflict of interest vis-à-vis the Indemnitee and/or the Indemnitee has defenses available to it that are not available to the Indemnitor, in which case the Indemnitor shall be responsible for the expense of the Indemnitee’s counsel. The Indemnitor shall keep the Indemnitee fully and timely informed as to actions taken on such matters. The Indemnitee shall cooperate fully with the Indemnitor and its counsel and shall provide them reasonable access to the Indemnitee’s employees, consultants, agents, attorneys, accountants, and files to the extent necessary or appropriate to defend or resolve the matter, the Indemnitor reimbursing the Indemnitee with respect to the reasonable cost of any Indemnifiable Claim or such access. With respect to assume the any matter for which a Party has an indemnification and/or defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee obligation under this Agreement, including Indemnitee’s right to control the Parties shall maintain a joint defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimprivilege, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee where applicable, in connection with defending such Indemnifiable Claim matters -45- TERMINAL SALE AND PURCHASE AGREEMENT (other than XXXXXX (WEST)) EXECUTION VERSION for the Party’s post-Closing communications and those of their respective Affiliates and Authorized Representatives, which post-Closing communications concern the matters subject to such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s indemnification and/or defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteeobligation.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (ai) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company or any subsidiary of the Company and the Indemnitee and the Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, Company or any subsidiary of the Company or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then the Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to the Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to Event which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and money, includes a complete and unconditional release of the Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable ClaimClaim and does not contain any admission of liability or wrongdoing by the Indemnitee. Neither the Company nor the Indemnitee will shall unreasonably withhold, condition withhold its or delay its his or her consent to any proposed settlement; provided that the Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee.

Defense of Claims. Except for (a) If any Indemnifiable Claim asserted claim is received by or any matter or circumstance comes to the attention of either Buyer or Buyer Parent which is likely to result in a Relevant Claim (which shall for the right purposes of this Section 10.4 not include a claim under the Tax Indemnity) or if any claim is received by or any matter or circumstance comes to the attention of the Company (as Warrantors which is likely to which Indemnitee will be entitled give rise to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable a Buyer Warranty Claim, the Company will have relevant party (which shall be Buyer or Buyer Parent in the case of a possible Relevant Claim and the relevant Warrantor in the case of a possible Buyer Warranty Claim, each being referred to as “Claimant” in this Section 10.4) shall give written notice (where Buyer or Buyer Parent is the Claimant) to Warrantors or (where any of the Warrantors is the Claimant) to Buyer Parent (each being referred to as “Recipient” in this Section 10.4) of the relevant claim, matter or circumstance as soon as reasonably practicable following and in any event within seven days of the Claimant becoming aware of the same. The relevant written notice (the “Claim Notice”) must contain (x) a description and the Claimant’s best estimate of the amount of the liability incurred or reasonably expected to be incurred by the Claimant, and (y) a reasonable explanation of the basis for the Claim Notice to the extent of facts then known by the Claimant. The failure of any Claimant to comply with the foregoing provisions shall not affect its right to control damages or an indemnity (as the defense case may be) hereunder, except to the extent that the Recipient is actually prejudiced by such non-compliance. The Claimant shall promptly, following the service of a Claim Notice, give to the Recipient all such Indemnifiable Claim information and will have no obligation under this Agreement access to personnel as the Recipient may reasonably request to enable it to investigate thoroughly the relevant claim and its potential liability in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteethereof.

Defense of Claims. Except In connection with any claim which may ----------------- give rise to indemnity under this Article IX resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Parties may (unless such Indemnitee elects not to seek indemnity hereunder for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defensesuch claim), upon written notice sent at any time to the Company will be entitled to participate in relevant Indemnitee, assume the defense of any Indemnifiable Claim such claim or Proceeding if all Indemnifying Parties with respect to assume such claim or Proceeding jointly acknowledge to the defense thereofIndemnitee the Indemnitee's right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, with counsel reasonably satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. The Company’s participation in If the Indemnifying Parties assume the defense of any Indemnifiable Claim such claim or Proceeding, the Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee (the parties agree that any Indemnitee shall be precluded from asserting that the firms of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this AgreementKirkland & Ellis or Gibson, including Indemnitee’s right Dunx & Xxxxchex XXX are xxx xeaxxxxbly xxxxxxxble) to control conduct the defense of such Indemnifiable Claimsclaim or Proceeding, shall take all steps reasonably necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue theresolution thereof. With respect to If the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has Indemnifying Parties shall have assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim or Proceeding in accordance with this Section 9.04, the Company will have Indemnifying Parties shall be authorized to consent to a settlement of, or the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect entry of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldjudgment arising from, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one claim or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will notProceeding, without the prior written consent of such Indemnitee; provided, effect however, that the Indemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment either concurrently with the effectiveness thereof or shall obtain and deliver to such Indemnitees prior to the execution of such settlement a general release executed by the Person not a party hereto, which general release shall release such Indemnitee from any settlement liability in such matter; provided, further, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any threatened Indemnitee or pending Indemnifiable Claim to which agree to any restriction that would apply to any Indemnitee isor to its conduct of business; and provided, or could have beenfurther, that a party unless condition to any such settlement solely involves the payment of money and includes shall be a complete and unconditional release of such Indemnitee from all liability on and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defense of any claims that are such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the subject matter Indemnifying Parties in the defense of any claim or Proceeding being defended by the Indemnifying Parties pursuant to this Section 9.04. If the Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 9.04, such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If the Indemnifying Parties seek to question the manner in which such Indemnitee defended such claim or Proceeding or the amount of or nature of any settlement such settlement, the Indemnifying Parties shall have the burden to prove by a preponderance of the evidence that does such Indemnitee did not provide defend such claim or Proceeding in a complete and unconditional release of Indemniteereasonably prudent manner.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or at its own expense and, except as otherwise provided below, to the extent the Company so wishes, it may assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in After notice from the Company to Indemnitee of its election to assume the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right shall not be liable to control the defense of such Indemnifiable Claim and will have no obligation Indemnitee under this Agreement in respect of or otherwise for any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or Expenses subsequently directly incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the CompanyIndemnitee’s defense of such Indemnifiable Claim or other action undertaken by except as otherwise provided below. If Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believeshas reasonably determined, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her Indemnitee that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent; provided, however ​ , that if a Change in Control has occurred, the Company shall be liable for indemnification of the Indemnitee for amounts paid in settlement if an Independent Counsel has approved the settlement. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s 's expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s 's prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to Event which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition withhold or delay its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for The Indemnitee shall give the Company prompt notice of any Indemnifiable Claim asserted relating to the Indemnitee’s Company Status (provided that the failure to give such prompt notice to the Company shall not relieve the Company of any indemnification obligation hereunder except to the extent that the defense of such Claim is prejudiced by or the failure to give such prompt notice, and then only to such extent), and the Company shall have the right to undertake the defense of any Claim by counsel chosen by the Company and reasonably satisfactory to the Indemnitee. If the Company undertakes the defense of any such Claim, the Indemnitee may, at the cost and expense of the Company, retain separate co-counsel to defend Indemnitee, and shall, to the best of its ability, assist the Company, at the expense of the Company, in the right defense of such Claim, and shall promptly send to the Company, at the expense of the Company Company, copies of any documents received by the Indemnitee that relate to such Claim. If the Company, within a reasonable time after receipt of notice of any such Claim, fails to defend the Indemnitee against which such Claim has been asserted, the Indemnitee shall (as upon further notice to which Indemnitee will be entitled the Company) have the right to exclusively control undertake the defense), compromise or settlement of such Claim on behalf of the Company. Notwithstanding the foregoing, (a) if there is a reasonable probability that a Claim may materially and adversely affect the Indemnitee in a manner other than the payment of monetary liabilities, the Indemnitee shall have the right to defend such Claim and to compromise or settle such Claim (in such event, the Company will be entitled to may retain separate co-counsel and participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to the Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim claim effected by the Indemnitee without the Company’s prior written consent. The , which consent shall not be unreasonably withheld, conditioned, or delayed; and (c) the Company will shall not, without the prior written consent of the Indemnitee, effect settle or compromise any settlement Claim or consent to the entry of any threatened judgment that does not include as an unconditional term thereof the giving by the claimant or pending Indemnifiable Claim the plaintiff to which the Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of and adverse actions with respect to such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeXxxxxxxxxx, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes will conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemniteelimits Xxxxxxxxxx’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has will have assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for If any Indemnifiable Claim asserted by or in the right one of the Company (as to which Indemnitee will be entitled to exclusively control Indemnified Parties arises out of a claim by a person other than one of the defense)Indemnified Parties, the Company Indemnified Parties will be entitled promptly give notice to participate in the defense Indemnifying Parties (or the Indemnifying Parties) of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, and thereafter the Company will have the right Indemnifying Parties may, by written notice, undertake to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of conduct any attorneys’ proceedings or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee negotiations in connection with defending therewith or necessary to defend the Indemnified Parties and take all other steps or proceedings to settle or contest such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in claim, including, without limitation, the Company’s defense employment of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldcounsel; PROVIDED, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeHOWEVER, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, Stockholder (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel ) shall not enter into any agreement in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain compromise or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened claim that could affect the Taxes attributable to any taxable period of the Company beginning on or pending Indemnifiable Claim effected without after the Company’s prior written consent. The Company will not, Closing Date without the prior written consent of IndemniteePrecept Transportation (which consent shall not be unreasonably withheld or delayed), effect any and (b) the Indemnifying Parties shall reasonably consider the advice of the Indemnified Parties as to the defense and settlement of any threatened or pending Indemnifiable Claim such claim and the Indemnified Parties shall have the right to which Indemnitee isparticipate, or could have beenat their own expense, a party unless in such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter defense. Except as otherwise provided herein, control of such Indemnifiable Claimlitigation and settlement shall remain with the Indemnifying Parties. Neither The Indemnified Parties shall provide all reasonable cooperation in connection with any such defense by the Company nor Indemnitee will unreasonably withholdIndemnified Parties. Counsel and auditor fees, condition filing fees and court fees of all proceedings, contests or delay its consent lawsuits with respect to any proposed such claim shall be borne by the Indemnified Parties, except that with respect to the litigation disclosed in paragraph 1 of Section 3.13 of the Disclosure Schedule, the Surviving Corporation shall be responsible for and promptly pay all counsel, expert, filing and court fees relating thereto (whether incurred prior to or after the Closing Date) . In the event that the Stockholder and/or the Surviving Corporation receives any recovery in any of the litigations described in paragraphs 1, 2 or 3 of Section 3.13 of the Disclosure Schedule (whether by settlement; provided that Indemnitee may withhold consent , payment in respect of any judgment or otherwise), such recovery shall first be applied to reimburse the Stockholder and the Surviving Corporation for any settlement that does and all expenses incurred by them in connection with such litigations (and if such recovery is insufficient to reimburse such expenses in their entirety, the amount thereof shall be allocated between the Stockholder and the Surviving Corporation PRO RATA in proportion to the amount of their respective expenses), and any recovery in excess of the amount of such expenses shall be shared equally by the Stockholder and the Surviving Corporation. If any such Claim is made hereunder and the Indemnifying Parties elect not provide a complete and unconditional release to undertake the defense thereof by written notice to the Indemnified Parties, the Indemnified Parties shall be entitled to indemnification with respect thereto pursuant to the terms of Indemniteethis Article VII.

Defense of Claims. Except Any party making a claim for any Indemnifiable Claim asserted by or in indemnification ----------------- under this Section 7.03 (an "Indemnitee") shall notify the right indemnifying party ---------- (an "Indemnitor") of the Company claim in writing promptly after receiving written ---------- notice of any action, lawsuit, proceeding, investigation or other claim against it (as if by a third party) or discovering the liability, obligation or facts giving rise to which Indemnitee will be entitled to exclusively control such claim for indemnification, describing the defenseclaim, the amount thereof (if known and quantifiable), and the Company will basis thereof; provided, that the failure to so notify an Indemnitor shall not relieve the Indemnitor of its obligations hereunder except to the extent such failure shall have harmed the Indemnitor. With respect to any third party claim, any Indemnitor shall be entitled to participate in the defense of any Indemnifiable Claim such action, lawsuit, proceeding, investigation or to assume the defense thereof, with counsel reasonably satisfactory other claim giving rise to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement's claim for indemnification at its expense, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect and at its option (subject to the period (if anylimitations set forth below) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use appoint lead counsel of such defense with a nationally recognized reputable counsel acceptable to Indemnitee; provided, that prior to Indemnitor assuming control of such defense it shall first (i) verify to the services of separate counsel Indemnitee in writing that such Indemnitor shall be fully responsible (but not more than one law firm plus, if applicable, local counsel in respect with no reservation of any particular Indemnifiable Claimrights) at for all liabilities and obligations relating to such claim for indemnification, subject to the Company’s expense. Nothing limitations set forth in this Agreement Section 7.03(c) and that it will limit Indemnitee’s right to retain provide full indemnification (whether or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable otherwise required hereunder) to Indemnitee under this Agreement with respect to such action, lawsuit, proceeding, investigation, or other claim giving rise to such claim for any amounts paid indemnification hereunder and (ii) furnish the Indemnitee with evidence which, in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent sole judgment of Indemnitee, effect is and will be sufficient to satisfy any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlementliability; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.further, that:

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee reasonably believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall reasonably conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the then-applicable standards of professional conduct then prevailingconduct, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for With respect to any Indemnifiable Claim asserted by or in the right of the Company (Proceeding as to which Indemnitee will be entitled to exclusively control notifies the defense)Company of the commencement thereof, the Company will be entitled to participate in the Proceeding at its own expense and except as otherwise provided below, to the extent the Company so wishes, it may assume the defense thereof. After notice from the Company to Indemnitee of any Indemnifiable Claim or its election to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this AgreementProceeding, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred approval by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will approval shall not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen designated by the Company to represent Indemnitee would present and the retention of such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to by the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement or otherwise for any amounts paid Expenses subsequently incurred by Indemnitee in settlement connection with the defense of such Proceeding. Indemnitee shall have the right to employ legal counsel in such Proceeding, but any threatened or pending Indemnifiable Claim effected without Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding shall be at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by the Company, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, (iii) after a Change in Control, Indemnitee’s prior written consentemployment of its own counsel has been approved by the Independent Counsel or (iv) the Company shall not within thirty (30) days in fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses related to such separate counsel in connection with the Proceeding shall be borne by the Company. In the event separate counsel is retained by an Indemnitee pursuant to this Section 4.03, the Company shall cooperate with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. The Company will not, without shall not be entitled to assume the prior written consent of Indemnitee, effect any settlement defense of any threatened Proceeding brought by or pending Indemnifiable Claim on behalf of the Company or as to which Indemnitee isshall have made the determination provided for in (ii), (iii) or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee(iv) above.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the The Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, thereof with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believesdetermines, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, or (d) Indemnitee has interests in the claim or underlying subject matter that are different from or in addition to those of other Persons against whom the Claim has been made or might reasonably be expected to be made, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable ClaimClaim for all indemnitees in Indemnitee’s circumstances) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in In the right of event the Company (as shall be obligated to which Indemnitee will be entitled to exclusively control the defense)pay Expenses in connection with any Proceeding against Indemnitee, the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereofof such Proceeding, with counsel reasonably satisfactory to approved by Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of , which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will approval shall not be unreasonably withheld, conditioned withheld or delayed)); provided that if , upon the delivery to Indemnitee believesof written notice of its election so to do. After delivery of such notice, after consultation with counsel selected by Indemnitee, that (a) the use approval of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and by Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the retention of such counsel by the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid fees of counsel subsequently incurred by Indemnitee with respect to the same Proceeding, provided that (i) Indemnitee shall have the right to employ counsel in settlement any such proceeding at Indemnitee’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any threatened such defense or pending Indemnifiable Claim effected (C) the Company shall not, in fact, have employed counsel to assume the defense of such proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company. The Company will be entitled to participate in any Proceeding at its own expense. The Company shall not settle any Proceeding (in whole or in part) which would impose any Expense, Liability or limitation on Indemnitee without Indemnitee’s prior written consent, such consent not to be unreasonably withheld. Indemnitee shall not settle any Proceeding (in whole or in part) which would impose any Expense, Liability or limitation on the Company without the Company’s prior written consent. The Company will not, without the prior written such consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim not to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will be unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteewithheld.

Defense of Claims. Except for The Indemnitor shall select (subject to the Indemnitee’s reasonable approval) the attorneys to defend any Indemnifiable Claim asserted by matter subject to -44- TERMINAL SALE AND PURCHASE AGREEMENT (ARCADIA) EXECUTION VERSION indemnification and/or taking all actions necessary or in the right of the Company (as appropriate to which Indemnitee will resolve, defend, and/or settle such matters, and shall be entitled to exclusively control contest, on its own behalf and on the defense)Indemnitee’s behalf, the Company will existence or amount of any obligation, cost, expense, debt or liability giving rise to such claim. Nothing in this Section 9.5(b) shall be entitled to participate construed as prohibiting the Indemnitee from participating in the defense (which may include hiring its own counsel) in any matter subject to indemnification, as long as the Indemnitee does so at its own expense, unless and to the extent that the Indemnitor or an Affiliate is also subject to such claim and the Indemnitee has determined in good faith that the Indemnitor has a conflict of interest vis-à-vis the Indemnitee and/or the Indemnitee has defenses available to it that are not available to the Indemnitor, in which case the Indemnitor shall be responsible for the expense of the Indemnitee’s counsel. The Indemnitor shall keep the Indemnitee fully and timely informed as to actions taken on such matters. The Indemnitee shall cooperate fully with the Indemnitor and its counsel and shall provide them reasonable access to the Indemnitee’s employees, consultants, agents, attorneys, accountants, and files to the extent necessary or appropriate to defend or resolve the matter, the Indemnitor reimbursing the Indemnitee with respect to the reasonable cost of any Indemnifiable Claim or such access. With respect to assume the any matter for which a Party has an indemnification and/or defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee obligation under this Agreement, including Indemnitee’s right to control the Parties shall maintain a joint defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimprivilege, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee where applicable, in connection with defending such Indemnifiable Claim (other than matters for the Party’s post-Closing communications and those of their respective Affiliates and Authorized Representatives, which post-Closing communications concern the matters subject to such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s indemnification and/or defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteeobligation.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement; provided, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimhowever, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided provided, however, that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereofof such Claim, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement; provided, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimhowever, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event to which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition withhold its or delay its his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for If any Indemnifiable Claim asserted by or in the right one of the Company Buyer Parties arises out of a claim by a person other than one of the Buyer Parties, Precept or Merger Sub will promptly give notice to the Shareholders (as or the Company, if applicable) of any such Claim, and thereafter the Shareholders (or the Company, if applicable) may, by written notice, undertake to which Indemnitee will be entitled conduct any proceedings or negotiations in connection therewith or necessary to exclusively control defend the defense)Buyer Parties and take all other steps or proceedings to settle or contest such claim, including, without limitation, the Company will be entitled to participate in the defense employment of any Indemnifiable Claim or to assume the defense thereofcounsel; provided, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemniteehowever, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, Shareholders (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel ) shall not enter into any agreement in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain compromise or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened claim that could affect the Taxes attributable to any taxable period of the Company beginning on or pending Indemnifiable Claim effected without after the Company’s prior written consent. The Company will not, Closing Date without the prior written consent of IndemniteePrecept or Merger Sub, effect any and (b) the Shareholders (or the Company, if applicable) shall reasonably consider the advice of the Buyer Parties as to the defense and settlement of any threatened or pending Indemnifiable Claim such claim and the Buyer Parties shall have the right to which Indemnitee isparticipate, or could have beenat their own expense, a party unless in such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter defense. Except as otherwise provided herein, control of such Indemnifiable Claimlitigation and settlement shall remain with the Shareholders (or the Company, if applicable). Neither The Buyer Parties shall provide all reasonable cooperation in connection with any such defense by the Company nor Indemnitee will unreasonably withholdShareholders (or the Company, condition if applicable). Counsel and auditor fees, filing fees and court fees of all proceedings, contests or delay its consent lawsuits with respect to any proposed settlement; provided that Indemnitee may withhold consent such claim shall be borne by the Shareholders (or the Company, if applicable). If any such Claim is made hereunder and the Shareholders (or the Company, if applicable) elects not to undertake the defense thereof by written notice to the Buyer Parties, the Buyer Parties shall be entitled to indemnification with respect thereto pursuant to the terms of this ARTICLE VII. If any settlement that does Claim for indemnification by Precept or Merger Sub arises out of a Claim by Precept or Merger Sub and not provide a complete and unconditional release of Indemniteethird party, then Precept or Merger Sub shall be entitled to immediate indemnification hereunder.

Defense of Claims. Except for If any Indemnifiable Claim asserted by or in the right one of the Company Precept Parties arises out of a claim by a person other than one of the Precept Parties, Precept or Merger Sub will promptly give notice to the Stockholders (as or the Company, if applicable) of any such Claim, and thereafter the Stockholders (or the Company, if applicable) may, by written notice, undertake to which Indemnitee will be entitled conduct any proceedings or negotiations in connection therewith or necessary to exclusively control defend the defense)Precept Parties and take all other steps or proceedings to settle or contest such claim, including, without limitation, the Company will be entitled to participate in the defense employment of any Indemnifiable Claim or to assume the defense thereofcounsel; PROVIDED, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeHOWEVER, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, Stockholders (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel ) shall not enter into any agreement in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain compromise or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened claim that could affect the Taxes attributable to any taxable period of the Company beginning on or pending Indemnifiable Claim effected without after the Company’s prior written consent. The Company will not, Closing Date without the prior written consent of IndemniteePrecept or Merger Sub, effect any and (b) the Stockholders (or the Company, if applicable) shall reasonably consider the advice of the Precept Parties as to the defense and settlement of any threatened or pending Indemnifiable Claim such claim and the Precept Parties shall have the right to which Indemnitee isparticipate, or could have beenat their own expense, a party unless in such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter defense. Except as otherwise provided herein, control of such Indemnifiable Claimlitigation and settlement shall remain with the Stockholders (or the Company, if applicable). Neither The Precept Parties shall provide all reasonable cooperation in connection with any such defense by the Company nor Indemnitee will unreasonably withholdStockholders (or the Company, condition if applicable). Counsel and auditor fees, filing fees and court fees of all proceedings, contests or delay its consent lawsuits with respect to any proposed settlement; provided that Indemnitee may withhold consent such claim shall be borne by the Stockholders (or the Company, if applicable). If any such Claim is made hereunder and the Stockholders (or the Company, if applicable) elects not to undertake the defense thereof by written notice to the Precept Parties, the Precept Parties shall be entitled to indemnification with respect thereto pursuant to the terms of this Article VII. If any settlement that does Claim for indemnification by Precept or Merger Sub arises out of a Claim by Precept or Merger Sub and not provide a complete and unconditional release of Indemniteethird party, then Precept or Merger Sub shall be entitled to immediate indemnification hereunder.

Defense of Claims. Except for (a) In connection with any Indemnifiable Claim asserted claim which may give rise to indemnity under this Article VIII resulting from or arising out of any claim or Proceeding against an Indemnitee by or in the right of the Company a Person that is not a party hereto (as to which Indemnitee will be entitled to exclusively control the defensea "Third Party Claim"), the Company will be entitled Indemnifying Party may, subject to participate in Section 8.4(b), assume the defense of any Indemnifiable Claim such claim or Proceeding (unless such Indemnitee elects not to assume seek indemnity hereunder for such claim), upon written notice to the defense thereofrelevant Indemnitee, if all Indemnifying Parties with counsel respect to such claim or Proceeding jointly acknowledge to the Indemnitee its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, reasonably satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. The Company’s participation in If the Indemnifying Parties assume the defense of any Indemnifiable Claim of which such claim or Proceeding, the Company has not assumed the defense will not in any manner affect the rights of Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee under this Agreement, including Indemnitee’s right to control conduct the defense of such Indemnifiable Claimsclaim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. With respect to If the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has Indemnifying Parties shall have assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim or Proceeding in accordance with this Section 8.4, the Company will have Indemnifying Parties shall be authorized to consent to a settlement of, or the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect entry of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldjudgment arising from, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one claim or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will notProceeding, without the prior written consent of such Indemnitee; provided, effect however, that the Indemnifying Parties 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 Parties shall not be authorized to encumber any settlement of the assets of any threatened Indemnitee or pending Indemnifiable Claim to which agree to any restriction that would apply to any Indemnitee isor to its conduct of business; and provided, or could have beenfurther, that a party unless condition to any such settlement solely involves the payment of money and includes shall be a complete and unconditional release of such Indemnitee from and its Affiliates, officers, employees, consultants and agents with respect to such claim. Subject to Section 8.4(b), such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense and the Indemnifying Parties shall provide such Indemnitee with reasonable access to all liability on materials relating to the defense of the action and otherwise cooperate with such Indemnitee and its counsel in connection with the Indemnitee's participation in such defense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defense of any claims that are claim or Proceeding being defended by the subject matter Indemnifying Parties pursuant to this Section 8.4. If the Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 8.4(a), such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteedefend against such claim or Proceeding.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the The Company will be entitled to participate in the defense (including, without limitation, the negotiation and approval of any Indemnifiable settlement) of any Claim in respect of which Indemnitee may seek indemnification from the Company hereunder or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation , provided that in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, event that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, Company or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s 's expense. Nothing Notwithstanding the preceding sentence, in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by event the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not shall be liable to Indemnitee under this Agreement for any amounts paid in settlement the reasonable costs of investigation and preparation for the defense of any threatened or pending Indemnifiable Claim effected (including, without the Company’s prior written consentlimitation, appearing as a witness and reasonable fees and expenses of counsel in connection therewith). The Company will not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which that the Indemnitee is, is or could have been, been a party to unless such settlement solely involves the payment of money and includes a complete and an unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will shall have the right to control defend the defense Indemnitee in any Proceeding (except a Proceeding brought by the Indemnitee under Section 6.3 of such Indemnifiable Claim and will have no obligation under this Agreement in respect Agreement) which may give rise to indemnification hereunder; provided, however, that the Company shall notify the Indemnitee of any attorneys’ or experts’ fees or expenses or such decision to defend within 15 calendar days following receipt of notice of any other costs or expenses paid or incurred such Proceeding under Section [3.2] above. Notwithstanding the foregoing sentence, if in a Proceeding to which the Indemnitee is a party by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request reason of the Company or with the consent of the Company (which consent will not be unreasonably withheldIndemnitee’s Corporate Status, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use Indemnitee reasonably concludes, based upon an opinion of counsel chosen approved by the Company Company, which approval shall not be unreasonably withheld or delayed, that he or she may have separate defenses or counterclaims to represent Indemnitee would present assert with respect to any issue which may not be consistent with other defendants in such counsel with a conflictProceeding, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company and Company, which approval shall not be unreasonably withheld or delayed, that an actual or apparent conflict of interest or potential conflict of interest exists between the Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by if the Company would be precluded under fails to assume the applicable standards defense of professional conduct then prevailingsuch Proceeding in a timely manner, then the Indemnitee will shall be entitled to retain and use be represented by separate legal counsel of the services Indemnitee’s choice, subject to the prior approval of separate counsel (but the Company, which approval shall not more than one law firm plusbe unreasonably withheld or delayed, at the expense of the Company. In addition, if applicable, local counsel in respect the Company fails to comply with any of any particular Indemnifiable Claim) at the Company’s expense. Nothing in its obligations under this Agreement will limit Indemnitee’s or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any Proceeding to deny or to recover from the Indemnitee the benefits intended to be provided to the Indemnitee hereunder, the Indemnitee shall have the right to retain counsel of the Indemnitee’s choice, subject to the prior approval of the Company, which approval shall not be unreasonably withheld or use his or her own counsel delayed, at his or her own the expense of the Company (subject to Section 6.4 of this Agreement), to represent the Indemnitee in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteematter.

Defense of Claims. Except for If any Indemnifiable Claim asserted by or in the right one of the Company Buyer Parties arises out of a claim by a person other than one of the Buyer Parties, Buyer will promptly give notice to Xxxxx (as or the Company, if applicable) of any such Claim, and thereafter Xxxxx (or the Company, if applicable) may, by written notice, undertake to which Indemnitee will be entitled conduct any proceedings or negotiations in connection therewith or necessary to exclusively control defend the defense)Buyer Parties and take all other steps or proceedings to settle or contest such claim, including, without limitation, the Company will be entitled to participate in the defense employment of any Indemnifiable Claim or to assume the defense thereofcounsel; PROVIDED, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeHOWEVER, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, Xxxxx (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel ) shall not enter into any agreement in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain compromise or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened claim that could affect the Taxes attributable to any taxable period of the Company beginning on or pending Indemnifiable Claim effected without after the Company’s prior written consent. The Company will not, Closing Date without the prior written consent of IndemniteeBuyer, effect any and (b) Xxxxx (or the Company, if applicable) shall reasonably consider the advice of the Buyer Parties as to the defense and settlement of any threatened or pending Indemnifiable Claim such claim and the Buyer Parties shall have the right to which Indemnitee isparticipate, or could have beenat their own expense, a party unless in such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter defense. Except as otherwise provided herein, control of such Indemnifiable Claimlitigation and settlement shall remain with Xxxxx (or the Company, if applicable). Neither The Buyer Parties shall provide all reasonable cooperation in connection with any such defense by Xxxxx (or the Company nor Indemnitee will unreasonably withholdCompany, condition if applicable). Counsel and auditor fees, filing fees and court fees of all proceedings, contests or delay its consent lawsuits with respect to any proposed settlement; provided that Indemnitee may withhold consent such claim shall be borne by Xxxxx (or the Company, if applicable). If any such Claim is made hereunder and Xxxxx (or the Company, if applicable) elects not to undertake the defense thereof by written notice to the Buyer Parties, the Buyer Parties shall be entitled to indemnification with respect thereto pursuant to the terms of this Article VII. If any settlement that does Claim for indemnification by Buyer arises out of a Claim by Buyer and not provide a complete and unconditional release of Indemniteethird party, then Buyer shall be entitled to immediate indemnification hereunder.

Defense of Claims. Except for The Lessor agrees to notify any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense relevant Lessee of any Indemnifiable Claim claim made against it for which such Lessee may be liable pursuant to this Section 16 and, if such Lessee requests, to contest or allow such Lessee to assume contest such claim. If any AESOP I Operating Lease Event of Default shall have occurred and be continuing, no contest shall be required, and any contest which has begun shall not be required to be continued to be pursued, unless arrangements to secure the defense thereof, with counsel payment of such Lessee's obligations pursuant to this Section 16 hereunder have been made and such arrangements are reasonably satisfactory to Indemniteethe Lessor. The Company’s participation in the defense of Lessor shall not settle any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreementsuch claim without such Lessee's consent, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld. Defense of any claim referred to in this Section 16 for which indemnity may be required shall, conditioned or delayed)); provided that if Indemnitee believesat the option and request of the Indemnified Person, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen be conducted by the Company relevant Lessee or the Guarantor, as applicable. Such Lessee or the Guarantor, as the case may be, will inform the Indemnified Person of any such claim and of the defense thereof and will provide copies of material documents relating to represent Indemnitee would present any such counsel with a conflict, (b) the named parties claim or defense to such Indemnified Person upon request. Such Indemnified Person may participate in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) defense at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her its own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will such participation does not unreasonably interfere with such Lessee's or the conduct Guarantor's assertion of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective such claim or defense. The Company Each Lessee and the Guarantor agrees that no Indemnified Person will not be liable to Indemnitee under such Lessee or the Guarantor, as applicable, for any claim caused directly or indirectly by the inadequacy of any Vehicle leased by such Lessee for any purpose or any deficiency or defect therein or the use or maintenance thereof or any repairs, servicing or adjustments thereto or any delay in providing or failure to provide such repairs, servicing or adjustments or any interruption or loss of service or use thereof or any loss of business, all of which shall be the risk and responsibility of such Lessee or the Guarantor. The rights and indemnities of each Indemnified Person hereunder are expressly made for the benefit of, and will be enforceable by, each Indemnified Person notwithstanding the fact that such Indemnified Person is either no longer a party to (or entitled to receive the benefits of) this Agreement, or was not a party to (or entitled to receive the benefits of) this Agreement at its outset. Except as otherwise set forth herein, nothing herein shall be deemed to require any Lessee or the Guarantor to indemnify the Lessor for any amounts paid in settlement of any threatened the Lessor's acts or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened omissions which constitute gross negligence or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.willful

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will The Corporation shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company Corporation to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company Corporation and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the CompanyCorporation, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the CompanyCorporation’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will Corporation shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the CompanyCorporation’s prior written consent. The Company will Corporation shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company Corporation nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in approved by the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will approval shall not be unreasonably withheld, conditioned or delayed)); provided that without limiting Indemnitee’ ​ ​ s right to approve counsel selected by Company to defend an Indemnifiable Claim, if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her Indemnitee that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for (a) In connection with any Indemnifiable Claim asserted claim that may give rise to indemnity under this Article IX resulting from or arising out of any claim or Proceeding against an Indemnitee by or in a Person that is not a party hereto, the right of the Company (as Indemnifying Party may, subject to which Indemnitee will be entitled to exclusively control the defenseSection 9.04(b), the Company will be entitled to participate in assume the defense of any Indemnifiable Claim such claim or Proceeding (unless such Indemnitee elects not to assume seek indemnity hereunder for such claim), upon written notice to the defense thereofrelevant Indemnitee, if all Indemnifying Parties with counsel respect to such claim or Proceeding jointly acknowledge to the Indemnitee its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, reasonably satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. The Company’s participation in Prior to the assumption by an Indemnifying Party of the defense of any Indemnifiable Claim of which claim or Proceeding, the Company has not assumed Indemnitee may make such appearances and filings with respect thereto as the Indemnitee reasonably determines to be necessary or appropriate. If the Indemnifying Parties assume the defense will not in of any manner affect such claim or Proceeding, the rights of Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee under this Agreement, including Indemnitee’s right to control conduct the defense of such Indemnifiable Claimsclaim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. With respect to If the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has Indemnifying Parties shall have assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim or Proceeding in accordance with this Section 9.04, the Company will have Indemnifying Parties shall be authorized to consent to a settlement of, or the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect entry of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldjudgment arising from, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one claim or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will notProceeding, without the prior written consent of such Indemnitee, effect PROVIDED that (i) the Indemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof, (ii) the 37 Indemnifying Parties shall not be authorized to encumber any settlement of the assets of any threatened Indemnitee or pending Indemnifiable Claim to which agree to any restriction that would apply to any Indemnitee isor to its conduct of business, or could have been, and (iii) a party unless condition to any such settlement solely involves the payment of money and includes shall be a complete and unconditional release of such Indemnitee from all liability on and its Affiliates, officers, employees, consultants and agents with respect to such claim. Subject to Section 9.04(b), such Indemnitee shall be entitled to participate in (but not control) the defense of any claims that are such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the subject matter Indemnifying Parties in the defense of any claim or Proceeding being defended by the Indemnifying Parties pursuant to this Section 9.04. If the Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 9.04(a), such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteedefend against such claim or Proceeding.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (ai) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company or any subsidiary of the Company and Indemnitee the Indemnitee, and the Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or such subsidiary of the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailingconduct, then the Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one separate law firm plus, if applicable, separate local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to the Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event to which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor the Indemnitee will shall unreasonably withhold, condition or delay its or his or her consent to any proposed settlement; provided that the Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee [or that admits misconduct by the Indemnitee or materially limits the Indemnitee’s future activities]. In no event shall the Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.

Defense of Claims. Except for With respect to any Indemnifiable Claim asserted by or in the right of the Company (Proceeding as to which Indemnitee will be entitled to exclusively control notifies the defense)Company of the commencement thereof, the Company will be entitled to participate in the Proceeding at its own expense and except as otherwise provided below, to the extent the Company so wishes, it may assume the defense thereof. After notice from the Company to Indemnitee of any Indemnifiable Claim or its election to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this AgreementProceeding, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred approval by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will approval shall not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen designated by the Company to represent Indemnitee would present and the retention of such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to by the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement or otherwise for any amounts paid Expenses subsequently incurred by Indemnitee in settlement connection with the defense of such Proceeding. Indemnitee shall have the right to employ legal counsel in such Proceeding, but any threatened or pending Indemnifiable Claim effected without Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding shall be at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by the Company, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, (iii) after a Change in Control, Indemnitee’s prior written consentemployment of its own counsel has been approved by the Independent Counsel or (iv) the Company shall not within sixty (60) days in fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses related to such separate counsel in connection with the Proceeding shall be borne by the Company. In the event separate counsel is retained by an Indemnitee pursuant to this Section 4.03, the Company shall cooperate with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. The Company will not, without shall not be entitled to assume the prior written consent of Indemnitee, effect any settlement defense of any threatened Proceeding brought by or pending Indemnifiable Claim on behalf of the Company or as to which Indemnitee isshall have made the determination provided for in (ii), (iii) or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee(iv) above.

Defense of Claims. Except for Upon receipt by Indemnitor of a notice ----------------- from Indemnitee with respect to any Indemnifiable Claim asserted claim of a third party against Indemnitee, and acknowledgment by Indemnitor (whether after resolution of a dispute or in the otherwise) of Indemnitee's right of the Company (as to which Indemnitee will be entitled indemnification hereunder with respect to exclusively control the defense)such claim, the Company will be entitled to participate in Indemnitor shall assume the defense of any Indemnifiable Claim or to assume the defense thereof, such claim with counsel reasonably satisfactory to Indemnitee and Indemnitee shall cooperate to the extent reasonably requested by Indemnitor in defense 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 by Indemnitor in connection therewith. If Indemnitor shall acknowledge Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s 's right to control indemnification and elect to assume the defense of such Indemnifiable Claims. With respect claim, Indemnitee shall have the right to employ its own counsel in any such case, but the period (if any) commencing fees and expenses of such counsel shall be at the time expense of Indemnitee, unless there is, under applicable standards of conduct, a conflict on any significant issue between Indemnitor and Indemnitee, in which case the fees and expenses of such counsel shall be at which the Company notifies Indemnitee that the Company expense of Indemnitor. If Indemnitor has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim against Indemnitee, the Company will Indemnitor shall have the right to control the defense of such Indemnifiable Claim settle any claim for which indemnification has been sought and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed))is available hereunder; provided that, to the extent that if such settlement requires Indemnitee believesto take, after consultation with counsel selected by or prohibits Indemnitee from taking, any action or purports to obligate Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present then Indemnitor shall not settle such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, claim without the prior written consent of Indemnitee. If Indemnitor does not assume the defense of a third party claim and disputes Indemnitee's right to indemnification, effect any settlement of any threatened or pending Indemnifiable Claim Indemnitor shall have the right to which Indemnitee is, or could have been, a party unless such settlement solely involves participate in the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter defense of such Indemnifiable Claim. Neither claim through counsel of its choice, at Indemnitor's expense, and Indemnitee shall have control over the Company nor Indemnitee will unreasonably withhold, condition or delay its consent litigation and authority to any proposed settlement; provided that Indemnitee may withhold consent resolve such claim subject to any settlement that does not provide a complete and unconditional release of Indemniteethis Section 8.2.

Defense of Claims. Except Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification hereunder (the “Indemnitee”) shall notify the indemnifying party (the “Indemnitor”) in writing within 30 days after the Indemnitee has actual knowledge of the facts constituting the basis for such claim (the “Notice of Claim”). The Notice of Claim shall specify all facts known to the Indemnitee giving rise to such indemnification claim and the amount or an estimate of the amount of the liability arising therefrom. If the facts giving rise to any Indemnifiable Claim asserted such indemnification shall involve any actual, threatened or possible claim or demand by or in any person against the Indemnitee, the Indemnitor shall be entitled (without prejudice to the right of the Company (as Indemnitee to participate at its expense through co-counsel of its own choosing) to contest or defend such claim at its expense and through counsel of its own choosing if the Indemnitor gives written notice of its intention to do so to the Indemnitee within 10 days after receipt of the Notice of Claim; provided that Indemnitor diligently prosecutes or defends such claim. The Indemnitee shall not settle any claim which would give rise to liability on the part of the Indemnitor under the indemnity contained in this Section without the written consent of the Indemnitor, which consent shall not unreasonably be withheld. If a firm offer is made to settle a claim or litigation defended by the Indemnitee will be entitled and the Indemnitor refuses to exclusively control accept such offer within 20 days after receipt of written notice from the defense)Indemnitee of the terms of such offer, then, in such event, the Company will Indemnitee shall continue to contest or defend such claim and shall be entitled indemnified pursuant to participate the terms hereof. Provided, however, that in the defense event the Indemnitor refuses to accept such offer to settle a claim as described above and the Indemnitee continues to contest or defend such claim, the indemnification provided for herein shall be deemed to include the value of any Indemnifiable Claim or to assume the defense thereof, management's time spent in connection with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claimsclaim. With If a firm offer is made to settle a claim or litigation and the Indemnitor notifies the Indemnitee in writing that the Indemnitor desires to accept and agree to such settlement, but the Indemnitee elects not to accept or agree to it, the Indemnitee may continue to contest or defend such claim or litigation and, in such event, the total maximum liability of the Indemnitor to indemnify or otherwise reimburse the Indemnitee hereunder with respect to such claim or litigation shall be limited to and shall not exceed the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense amount of such Indemnifiable Claimsettlement offer, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such plus reasonable out-of-pocket costs and expenses paid (including reasonable attorneys' fees and disbursements) to the date of notice that the Indemnitor desires to accept such settlement. Notwithstanding any provision of this Agreement to the contrary, no claim for indemnification pursuant to this Section 9 by the Indemnitee shall be asserted or incurred by Indemnitee in connection with any cooperation claimed except to the extent of damages exceeding, in the Company’s defense aggregate, the sum of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee$ 500.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement; provided, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimhowever, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, Company or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in with respect of to any particular Indemnifiable Claim) at the Company’s 's expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s 's prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which that Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided provided, however, that Indemnitee may withhold consent to (i) any settlement that does not provide a complete and unconditional release of Indemnitee or (ii) any settlement which imposes a monetary payment obligation upon Indemnitee which is not being paid in full by the Company, insurance coverage or any other party for the benefit of Indemnitee.

Defense of Claims. Except for The Lessee or its insurers shall have the right (in each such case at the Lessee's sole expense) to investigate or, provided that (i) the Lessee or its insurers shall not reserve the right to dispute liability with respect to any Indemnifiable Claim asserted by or insurance policies pursuant to which coverage is sought, (ii) in the right case of the Company Lessee, no Event of Default shall have occurred and be continuing and (as iii) the Lessee shall have first acknowledged in writing to such Indemnitee the Lessee's obligation to indemnify such Indemnitee hereunder in respect of such claim, defend any such claim covered by insurance for which indemnification is sought pursuant to this Article 9 and each Indemnitee will shall cooperate with the Lessee or its insurers with respect thereto, and provided, further, the Lessee shall not be entitled to exclusively assume and control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim such claim if and to the extent such Indemnitee reasonably objects to such control on the ground that an actual or potential material conflict of interest exists where it is advisable for such Indemnitee to be represented by separate counsel; and provided, further that in any judicial or administrative proceeding involving a claim for which payment or indemnity is sought under this Article 9 and other claims related or unrelated to the transactions contemplated by the Operative Agreements, the Lessee will not be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to and control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing claim unless such claim is severed from such other claims at the time at which the Company notifies Indemnitee Lessee's expense; and provided further that the Company has assumed the defense of any Indemnifiable Claim Lessee will not be entitled to assume and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect claim if the same involves a material danger of criminal liability or the sale, forfeiture or loss of, or the creation of any attorneys’ Lien on, the Aircraft or experts’ Lessor's Estate or any part thereof. Subject to the immediately foregoing sentence, where the Lessee or the insurers under a policy of insurance maintained by the Lessee undertake the defense of an Indemnitee with respect to such a claim, no additional legal fees or expenses or any other costs or expenses paid or incurred by of such Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim claim shall be indemnified hereunder unless the fees or other action undertaken by Indemnitee expenses were incurred at the written request of the Company Lessee or with such insurers. Subject to the consent requirement of any policy of insurance applicable to a claim, an Indemnitee may participate at its own expense at any judicial proceeding controlled by the Lessee or its insurers pursuant to the preceding provisions, to the extent that such party's participation does not, in the opinion of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with independent counsel selected by Indemnitee, that (a) the use of counsel chosen appointed by the Company Lessee or its insurers to represent Indemnitee would present conduct such counsel proceedings, interfere with such control; and such participation shall not constitute a conflict, (b) waiver of the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing indemnification provided in this Agreement will limit Indemnitee’s right Section 9.06. No Indemnitee shall enter into any settlement or other compromise with respect to retain or use his or her own counsel at his or her own expense any claim described in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, Section 9.06 without the prior written consent of Indemniteethe Lessee, effect any settlement of any threatened which consent shall not unreasonably be withheld or pending Indemnifiable Claim to which Indemnitee isdelayed, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of waives its right to be indemnified under this Article 9 with respect to such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteeclaim.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim threatened or pending action, suit, proceeding or claim in respect of which the Indemnitee requests indemnification under this Agreement or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (a) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim action, suit, proceeding or claim (including any impleaded parties) include both the Company and the Indemnitee and the Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her [him/her] that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailingprevailing or (d) any such representation could be reasonably expected to increase the Indemnitee’s risk of liability, then the Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claimaction, suit, proceeding or claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim action, suit, proceeding or claim to which the Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claimaction, suit, proceeding or claim. Neither the Company nor The Indemnitee will shall not unreasonably withhold, condition or delay withhold its consent to any proposed settlement; , provided that the Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee.

Defense of Claims. Except for Upon receipt by Indemnitor of a notice from Indemnitee with respect to any Indemnifiable Claim asserted claim of a third party against Indemnitee, and acknowledgment by Indemnitor (whether after resolution of a dispute or in the otherwise) of Indemnitee’s right of the Company (as to which Indemnitee will be entitled indemnification hereunder with respect to exclusively control the defense)such claim, the Company will be entitled to participate in Indemnitor shall assume the defense of any Indemnifiable Claim or to assume the defense thereof, such claim with counsel reasonably satisfactory to Indemnitee, with the fees and expenses of such counsel to be paid by Indemnitor, and Indemnitee shall cooperate to the extent reasonably requested by Indemnitor in defense 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 by Indemnitor in connection therewith. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including If Indemnitor shall acknowledge Indemnitee’s right to control indemnification and elect to assume the defense of such Indemnifiable Claims. With respect claim, Indemnitee shall have the right to employ its own counsel in any such case, but the period (if any) commencing reasonable fees and expenses of such counsel shall be at the time at which the Company notifies Indemnitee that the Company expense of Indemnitee. If Indemnitor has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim against Indemnitee, the Company will Indemnitor shall have the right to control the defense of such Indemnifiable Claim settle any claim for which indemnification has been sought and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed))is available hereunder; provided that, to the extent that if such settlement requires Indemnitee believesto take, after consultation with counsel selected by or prohibits Indemnitee from taking, any action or purports to obligate Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present then Indemnitor shall not settle such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, claim without the prior written consent of Indemnitee, effect any settlement . If Indemnitor does not assume the defense of any threatened or pending Indemnifiable Claim to a third party claim for which Indemnitee isis entitled to indemnification hereunder and Indemnitor disputes Indemnitee’s right to indemnification for such claim, or could Indemnitee shall have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are right to participate in the subject matter defense of such Indemnifiable Claim. Neither claim through counsel of its choice, at Indemnitor’s expense (such expenses to be paid on a timely, as-accrued basis), and Indemnitee shall have control over the Company nor Indemnitee will unreasonably withhold, condition or delay its consent litigation and authority to any proposed settlement; provided that Indemnitee may withhold consent resolve such claim subject to any settlement that does not provide a complete and unconditional release of Indemniteethis Article IX.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the The Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeXxxxxxxxxx, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company Company, or any subsidiary of the Company, and Indemnitee Indemnitee, and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or any subsidiary of the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s 's expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s 's prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to Event which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee. In no event shall Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.

Defense of Claims. Except With respect to any Proceeding for any Indemnifiable Claim asserted which indemnification is requested by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense)under this Agreement, the Company will be entitled to participate in the Proceeding at its own expense and, except as otherwise provided below or pursuant to the terms of any applicable D&O Insurance, to the extent that it may desire, the Company may, upon written notice to Indemnitee within thirty (30) days after the Notification Date, assume and control the defense of any Indemnifiable Claim or to assume the defense thereofProceeding, with counsel reasonably satisfactory to the Indemnitee. The After the Company notifies the Indemnitee of the Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right election to assume and control the defense of such Indemnifiable Claims. With respect to a Proceeding, during the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective Company’s good faith active defense of such Indemnifiable ClaimProceeding, the Company will not be liable to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense or settlement of the Proceeding, other than reasonable expenses of investigation or as specifically provided below. The Indemnitee shall have the right to employ separate counsel for the Indemnitee in any Proceeding but the fees and expenses of such counsel incurred after notice from the Company of its assumption of control of the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect the Proceeding shall be at the expense of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred the Indemnitee, unless (i) the employment of counsel by the Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred has been authorized by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company , (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (aii) the use of Indemnitee has reasonably concluded that counsel chosen employed by the Company to represent Indemnitee would present such counsel with assume defense of a conflict, (b) the named parties Proceeding has a conflict of interest in any such Indemnifiable Claim (including any impleaded parties) include representing both the Company and Indemnitee and in the Proceeding, (iii) the Company has not in fact employed counsel to assume the defense of a Proceeding, (iv) the Company has returned defense of the Proceeding to Indemnitee, or (v) the Indemnitee concludes has reasonably concluded that there may be one or more legal defenses available to him or her Indemnitee that are different from or in addition additional to those available to the Company, or (c) in any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailingwhich events, then Indemnitee will shall be entitled to retain control its own defense of the Proceeding. In each of the foregoing cases, the reasonable fees and use expenses of the services Indemnitee’s counsel shall be at the expense of separate counsel (the Company, but not in no event shall the Company be responsible for the fees or expenses of more than one law firm representing Indemnitee, plus, if applicablenecessary, one firm serving as local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit to Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable entitled to Indemnitee under this Agreement for any amounts paid in settlement assume the defense of any threatened Proceeding brought by or pending Indemnifiable Claim effected without on behalf of the Company’s . Notwithstanding anything to the contrary in this Agreement, the Indemnitee shall not make any admission in any Proceeding with out the prior written consent. The consent of the Company, which consent shall not be unreasonably withheld, and neither the Company will not, nor the Indemnitee shall waive any privilege or right available to the other party (the “Privilege Party”) in any Proceeding without the prior written consent of Indemniteethe Privilege Party, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will consent shall not be unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteewithheld.

Defense of Claims. Except for The Lessee or its insurers shall have the right (in each such case at the Lessee's sole expense) to investigate or, provided that (i) the Lessee or its insurers shall not reserve the right to dispute liability with respect to any Indemnifiable Claim asserted by or insurance policies pursuant to which coverage is sought, (ii) in the right case of the Company Lessee, no Event of Default shall have occurred and be continuing and (as iii) the Lessee shall have first acknowledged in writing to such Indemnitee the Lessee's obligation to indemnify such Indemnitee hereunder in respect of such claim, defend any such claim covered by insurance for which indemnification is sought pursuant to this Article 9 and each Indemnitee will shall cooperate with the Lessee or its insurers with respect thereto, and provided, further, the Lessee shall not be entitled to exclusively assume and control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim such claim if and to the extent such Indemnitee reasonably objects to such control on the ground that an actual or potential material conflict of interest exists where it is advisable for such Indemnitee to assume be represented by separate counsel. Subject to the defense thereofimmediately foregoing sentence, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in where the Lessee or the insurers under a policy of insurance maintained by the Lessee undertake the defense of any Indemnifiable Claim an Indemnitee with respect to such a claim, no additional legal fees or expenses of which the Company has not assumed the defense will not such Indemnitee in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control connection with the defense of such Indemnifiable Claims. With respect to claim shall be indemnified hereunder unless the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or were incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the written request of the Company Lessee or with such insurers. Subject to the consent requirement of any policy of insurance applicable to a claim, an Indemnitee may participate at its own expense at any judicial proceeding controlled by the Lessee or its insurers pursuant to the preceding provisions, to the extent that such party's participation does not, in the opinion of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with independent counsel selected by Indemnitee, that (a) the use of counsel chosen appointed by the Company Lessee or its insurers to represent Indemnitee would present conduct such counsel proceedings, interfere with such control; and such participation shall not constitute a conflict, (b) waiver of the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing indemnification provided in this Agreement will limit Indemnitee’s right Section 9.06. No Indemnitee shall enter into any settlement or other compromise with respect to retain or use his or her own counsel at his or her own expense any claim described in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, Section 9.06 without the prior written consent of Indemniteethe Lessee, effect which consent shall not unreasonably be withheld or delayed, unless such Indemnitee waives its right to be indemnified under this Article 9 with respect to such claim. The Lessee shall not enter into any settlement of any threatened or pending Indemnifiable Claim compromise which the Lessee has not agreed to discharge or with respect to which the Lessee has not agreed to indemnify such Indemnitee is, or could have been, a party unless to such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee's satisfaction.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes will conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit limits Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has will have assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the (a) The Company (as to which Indemnitee will shall be entitled to exclusively control the defense), the Company will be entitled at its own expense to participate in the defense of any Indemnifiable Claim Proceeding or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense , by providing written notice to Indemnitee of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreementits election to do so; provided, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimhowever, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeIndemnitee (which shall be paid for by the Company), that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim claim (including any impleaded parties) include both the Company and Indemnitee Indemnitee, and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable ClaimProceeding) at the Company’s expense. Nothing Furthermore, if the Company has elected to assume or participate in this Agreement will limit Indemnitee’s right the defense of any Proceeding but shall not, in fact, have retained a law firm to prosecute the defense of such Proceeding within 30 days, then Indemnitee shall be entitled to retain or use his or her own counsel at his or her own expense (provided, however, Indemnitee shall not retain more than one law firm plus, if applicable, local counsel in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company respect of any Indemnifiable Claim particular Proceeding) at the Company’s expense, provided that the Company has assumed and may replace such counsel in accordance with the first sentence of this Section 8(a). (b) The Company shall not settle any Proceeding (in whole or in part) which would impose any expense, liability or limitation on Indemnitee without Indemnitee’s prior written consent. Indemnitee shall not settle any Proceeding (in whole or in part) that would impose any expense, liability or limitation on the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition withhold or delay its or his or her consent to any proposed settlement; provided provided, however, that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee in form and substance reasonably satisfactory to Indemnitee. Section 9.

Defense of Claims. Except Whenever any Claim shall arise for indemnification hereunder, the party entitled to indemnification (the “Indemnitee”) shall notify the indemnifying party (the “Indemnitor”) in writing within 30 days after the Indemnitee has actual knowledge that it is entitled to indemnification of such Claim constituting the basis for such Claim (the “Notice of Claim”). The Notice of Claim shall specify all facts known to the Indemnitee giving rise to such indemnification claim and the amount or an estimate of the amount of the liability arising therefrom. If the facts giving rise to any Indemnifiable Claim asserted such indemnification shall involve any actual, threatened or possible claim or demand by or in any person against the Indemnitee, the Indemnitor shall be entitled (without prejudice to the right of the Company (as Indemnitee to participate at its expense through co-counsel of its own choosing) to contest or defend such claim at his expense and through counsel of his own choosing if he gives written notice of his intention to do so to the Indemnitee within 10 days after receipt of the Notice of Claim; provided that Indemnitor diligently prosecutes or defends such claim. The Indemnitee shall not settle any claim that would give rise to liability on the part of the Indemnitor under the indemnity contained in this Section without the written consent of the Indemnitor, which consent shall not unreasonably be withheld. If a firm offer is made to settle a claim or litigation defended by the Indemnitee will be entitled and the Indemnitor refuses to exclusively control accept such offer within 20 days after receipt of written notice from the defense)Indemnitee of the terms of such offer, then, in such event, the Company will Indemnitee shall continue to contest or defend such claim and shall be entitled indemnified pursuant to participate the terms hereof. If a firm offer is made to settle a claim or litigation and the Indemnitor notifies the Indemnitee in writing that the defense Indemnitor desires to accept and agree to such settlement, but the Indemnitee elects not to accept or agree to it, the Indemnitee may continue to contest or defend such claim or litigation and in such event, the total maximum liability of any Indemnifiable Claim the Indemnitor to indemnify or otherwise reimburse the Indemnitee hereunder with respect to assume such claim or litigation shall be limited to and shall not exceed the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense amount of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its settlement offer, plus reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such out-of-pocket costs and expenses paid (including reasonable attorneys’ fees and disbursements) to the date of notice that the Indemnitor desires to accept such settlement. Notwithstanding any provision of this Agreement to the contrary, neither Shoom Stockholders’ nor MergerSub’s maximum liability for indemnification shall exceed a total of five million five hundred thousand dollars ($5,500,000). Further, notwithstanding anything in this Agreement to the contrary, no Shoom Stockholder shall have any liability for indemnity obligations in excess of such Shoom Stockholder’s pro-rata portion of the total liability for such indemnity, based upon the relative numbers of Shoom Shares held by the Shoom Stockholders. For example, if the total aggregate indemnity liability of the Shoom Stockholders as a group is $1,000,000, and a Shoom Stockholder held 10% of the Shoom Shares, such Shoom Stockholder’s maximum liability for indemnification shall be $100,000. Notwithstanding any provision of this Agreement to the contrary, no claim for indemnification pursuant to this Section 5 by the Indemnitee shall be asserted or incurred claimed except for the amount of such Claim in excess of the aggregate, the sum of $25,000 (the “Shoom Stockholders’ Basket”). Any Loss suffered by Indemnitee MergerSub for payment of any insurance deductible in connection with any cooperation in proceedings shall be excluded from the Company’s defense Shoom Stockholders’ Basket. All claims for indemnification against the Shoom Stockholders shall be satisfied by the Shoom Stockholders on a pro-rata basis first by forfeiture of such Indemnifiable Claim Escrow Shares and Escrow Cash held pursuant to Section 1(i) and if not satisfied thereby, by forfeiture of additional Consideration Shares. For purposes of determining the number of Escrow Shares or other action undertaken by Indemnitee at the request Consideration Shares to be forfeited in order to satisfy a claim for indemnity, any Escrow Shares or Consideration Shares that are forfeited in satisfaction of indemnity obligations shall be deemed to have a value of the Company or with the consent greater of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that i) two dollars (a$2.00) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Companyper share, or (cii) the average closing price of such Sysorex Shares for the ten (10) trading days preceding the date on which such shares are forfeited in satisfaction of indemnity obligations. Notwithstanding the above, any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will Shoom Stockholder shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right elect to retain satisfy some or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition Shoom Stockholder’s indemnity obligations hereunder in cash rather than through forfeiture of Escrow Shares or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteeother Consideration Shares.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which the Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee the Indemnitee(without any admission of fault of Indemnitee) from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee (without any admission of fault of Indemnitee).

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim or Event or, in its sole discretion, to assume the defense thereofof such Claim, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement; provided, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimhowever, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to Event which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition withhold its or delay its his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.. BY DIAMEDICA THERAPEUTICS INC. PURSUANT TO 17 C.F.R. SECTION 200.83

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will shall have the right to control defend the defense Indemnitee in any Proceeding (except a Proceeding brought by the Indemnitee under Section 6.3 of such Indemnifiable Claim and will have no obligation under this Agreement in respect Agreement) which may give rise to indemnification hereunder; provided, however, that the Company shall notify the Indemnitee of any attorneys’ or experts’ fees or expenses or such decision to defend within 15 calendar days following receipt of notice of any other costs or expenses paid or incurred such Proceeding under Section 3.1 above. Notwithstanding the foregoing sentence, if in a Proceeding to which the Indemnitee is a party by reason of the Indemnitee’s Corporate Status, (a) the Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred reasonably concludes, based upon an opinion of counsel approved by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (, which consent will approval shall not be unreasonably withheld, conditioned that he or delayed)); provided that if Indemnitee believes, after consultation she may have separate defenses or counterclaims to assert with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company respect to represent Indemnitee would present any issue which may not be consistent with other defendants in such counsel with a conflictProceeding, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company and Company, which approval shall not be unreasonably withheld, that an actual or apparent conflict of interest or potential conflict of interest exists between the Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by if the Company would be precluded under fails to assume the applicable standards defense of professional conduct then prevailingsuch Proceeding in a timely manner, then the Indemnitee will shall be entitled to retain and use be represented by separate legal counsel of the services Indemnitee’s choice, subject to the prior approval of separate counsel (but the Company, which shall not more than one law firm plusbe unreasonably withheld, at the expense of the Company. In addition, if applicable, local counsel in respect the Company fails to comply with any of any particular Indemnifiable Claim) at the Company’s expense. Nothing in its obligations under this Agreement will limit Indemnitee’s or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any Proceeding to deny or to recover from the Indemnitee the benefits intended to be provided to the Indemnitee hereunder, the Indemnitee shall have the right to retain or use his or her own counsel of the Indemnitee’s choice, subject to the prior approval of the Company, which shall not be unreasonably withheld, at his or her own the expense of the Company (subject to Section 6.4 of this Agreement), to represent the Indemnitee in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteematter.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s 's expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s 's prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for The Company, separately or jointly with any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense)other indemnifying party, the Company will shall be entitled to participate in the defense of any Indemnifiable Claim Proceeding to which Indemnitee is a Party by reason of Indemnitee’s Corporate Status or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimprovided, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldhowever, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, concludes in good faith that (a) the use of counsel chosen by the Company to represent Indemnitee would likely present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (cb) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel counsel, and if requested by the Company, jointly with any other directors or officers who are Parties to such Proceeding unless a circumstance of the type referred to in the preceding clause (a) or clause (b) applies with respect of any particular Indemnifiable Claimto such joint representation) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim Proceeding effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party Proceeding unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claimthe Proceeding. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided provided, however, that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will shall be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this SVI-700153647v1 11 Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is shall be using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will shall have the right to control the defense of such Indemnifiable Claim and will shall have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will shall limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will shall not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has shall have assumed and of which the Company is shall be using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will The Corporation shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company Corporation to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company Corporation and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the CompanyCorporation, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the CompanyCorporation’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will Corporation shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the CompanyCorporation’s prior written consent. The Company will Corporation shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company Corporation nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except The Lessor agrees to notify the Lessee of any claim made against it for which the Lessee may be liable pursuant to this Section 16 and, if the Lessee requests, to contest or allow the Lessee to contest such claim. If any Indemnifiable Claim asserted by or in Lease Event of Default shall have occurred and be continuing, no contest shall be required, and any contest which has begun shall not be required to be continued to be pursued, unless arrangements to secure the right payment of the Company (as Lessee’s obligations pursuant to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel this Section 16 hereunder have been made and such arrangements are reasonably satisfactory to Indemniteethe Lessor. The CompanyLessor shall not settle any such claim without the Lessee’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreementconsent, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld. Defense of any claim referred to in this Section 16 for which indemnity may be required shall, conditioned or delayed)); provided that if Indemnitee believesat the option and request of the Indemnified Person, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen be conducted by the Company Lessee or the Guarantor, as applicable. The Lessee or the Guarantor, as the case may be, will inform the Indemnified Person of any such claim and of the defense thereof and will provide copies of material documents relating to represent Indemnitee would present any such counsel with a conflict, (b) the named parties claim or defense to such Indemnified Person upon request. Such Indemnified Person may participate in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) defense at the Company’s its own expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will such participation does not unreasonably interfere with the conduct Lessee’s or the Guarantor’s assertion of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective such claim or defense. The Company Lessee and the Guarantor agree that no Indemnified Person will not be liable to Indemnitee under the Lessee or the Guarantor, as applicable, for any claim caused directly or indirectly by the inadequacy of any BTF Truck leased for any purpose or any deficiency or defect therein or the use or maintenance thereof or any repairs, servicing or adjustments thereto or any delay in providing or failing to provide such repairs, servicing or adjustments or any interruption or loss of service or use thereof or any loss of business, all of which shall be the risk and responsibility of the Lessee or the Guarantor. The rights and indemnities of each Indemnified Person hereunder are expressly made for the benefit of, and will be enforceable by, each Indemnified Person notwithstanding the fact that such Indemnified Person is either no longer a party to (or entitled to receive the benefits of) this Agreement, or was not a party to (or entitled to receive the benefits of) this Agreement at its outset. Except as otherwise set forth herein, nothing herein shall be deemed to require the Lessee or the Guarantor to indemnify the Lessor for any amounts paid in settlement of any threatened the Lessor’s acts or pending Indemnifiable Claim effected without the Company’s prior written consentomissions which constitute gross negligence or willful misconduct. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on This general indemnity shall not affect any claims that are of the subject matter of such Indemnifiable Claim. Neither type discussed above which the Company nor Indemnitee will unreasonably withhold, condition Lessee or delay its consent to any proposed settlement; provided that Indemnitee the Guarantor may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteehave against the manufacturer.

Defense of Claims. Except In connection with any claim which may give rise to indemnity under this Article VIII resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Parties may (unless such Indemnitee elects not to seek indemnity hereunder for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defensesuch claim), upon written notice to the Company will be entitled to participate in relevant Indemnitee, assume the defense of any Indemnifiable Claim such claim or Proceeding if all Indemnifying Parties with respect to such claim or Proceeding jointly acknowledge to the Indemnitee that such Indemnitee may have a right of indemnity pursuant hereto based on the outcome of the Proceeding (as such claim may have been modified through written agreement of the parties or arbitration hereunder). If the Indemnifying Parties assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which such claim or Proceeding, the Company has not assumed the defense will not in any manner affect the rights of Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee under this Agreement, including Indemnitee’s right to control conduct the defense of such Indemnifiable Claimsclaim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. With respect to If the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has Indemnifying Parties shall have assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim or Proceeding in accordance with this Section 8.04, the Company will have Indemnifying Parties shall be authorized to consent to a settlement of, or the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect entry of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldjudgment arising from, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one claim or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will notProceeding, without the prior written consent of such Indemnitee; PROVIDED, effect HOWEVER, that the Indemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof to the extent required pursuant to Section 8.01; PROVIDED, FURTHER, that the Indemnifying Parties shall not be authorized to encumber any settlement of the assets of any threatened Indemnitee or pending Indemnifiable Claim to which agree to any restriction that would apply to any Indemnitee isor to its conduct of business; and PROVIDED, or could have beenFURTHER, that a party unless condition to any such settlement solely involves the payment of money and includes shall be a complete and unconditional release of such Indemnitee from all liability on and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in (but not control) the defense of any claims that are such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the subject matter Indemnifying Parties in the defense of any claim or Proceeding being defended by the Indemnifying Parties pursuant to this Section 8.04. If the Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 8.04, such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If the Indemnifying Parties seek to question the manner in which such Indemnitee defended such claim or Proceeding or the amount of or nature of any settlement such settlement, the Indemnifying Parties shall have the burden to prove by a preponderance of the evidence that does such Indemnitee did not provide defend such claim or Proceeding in a complete and unconditional release of Indemniteereasonably prudent manner.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or at its own expense and, except as otherwise provided below, to the extent the Company so wishes, it may assume the defense thereof, thereof with counsel reasonably satisfactory to Indemnitee. The Company’s participation in After notice from the Company to Indemnitee of its election to assume the defense of any Indemnifiable Claim of which Claim, the Company has shall not assumed the defense will not in any manner affect the rights of be liable to Indemnitee under this Agreement, including Agreement or otherwise for any Expenses subsequently directly incurred by Indemnitee in connection with Indemnitee’s right to control the defense of such Indemnifiable ClaimsClaim other than reasonable costs of investigation or as otherwise provided below. With respect Indemnitee shall have the right to the period (if any) commencing at the time at which employ her own legal counsel in such Indemnifiable Claim, but all Expenses related to such counsel incurred after notice from the Company notifies of is assumption of the defense shall be at Indemnitee’s own expenses; provided, however, that if (i) Indemnitee’s employment of its own legal counsel has been authorized by the Company, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company has assumed in the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, (iii) after a Change in Control, Indemnitee’s employment of its counsel has been approved by the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim Independent counsel, (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (aiv) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (bv) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (cvi) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailingprevailing or (vii) the Company shall not in fact have employed counsel to assume the defense of such Indemnifiable Claim, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at and all Expenses related to such separate counsel shall be borne by the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will shall be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is shall be using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will shall have the right to control the defense of such Indemnifiable Claim and will shall have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named 2019 04 Form of D&O Indemnification Agreement parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will shall limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will shall not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has shall have assumed and of which the Company is shall be using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except Promptly upon receipt of notice of a claim for any Indemnifiable Claim asserted indemnity as required by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defenseSection 15.6(a), the Company Indemnitor shall assume and control the defense of any such Claim and the payment of expenses related thereto in good faith and with counsel reasonably experienced in the field relating to the Claim. The parties agree that: (i) the Indemnitor will not be entitled liable for any settlement of any Claim effected by the Indemnitee without the Indemnitor’s express prior written consent, which consent may not be unreasonably conditioned, withheld or delayed; (ii) the Indemnitor will not settle any Claim without the express prior written consent of the Indemnitee, which consent may not be unreasonably conditioned, withheld or delayed, provided, however, that no such consent shall be required so long as the Indemnitee does not incur any Obligation of any nature or kind in connection with such settlement and Indemnitee is fully and forever released of all liability in connection therewith (if any such settlement is effected without the Indemnitee’s consent, the Indemnitor shall promptly provide to Indemnitee true and complete copies of such settlement); and (iii) the Indemnitee may elect to employ separate counsel and participate in the defense of any Indemnifiable Claim or to assume such Claim, but in such event, the defense thereofIndemnitee will be responsible for the fees and expenses of such separate counsel, with counsel reasonably satisfactory to Indemnitee. The Company’s participation except that in the defense of any Indemnifiable Claim of which event the Company Indemnitor has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right failed to control promptly and adequately assume the defense of such Indemnifiable Claims. With respect to claim in good faith and use reasonably experienced counsel in the period (if any) commencing at relevant field as required by this Agreement, then the time at which Indemnitor shall be responsible for the Company notifies Indemnitee that the Company has assumed the defense fees and expenses of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred counsel employed by Indemnitee in connection with defending such Indemnifiable Claim (and all other than such costs and expenses paid associated with the Claim and the defense thereof. If requested by the Indemnitor, the Indemnitee agrees to cooperate with the Indemnitor and its counsel in reasonably contesting any Claim or, if appropriate, in making any counterclaim against the Person asserting the Claim, or incurred by any cross-complaint against any Person and the Indemnitee in connection with any cooperation in the Company’s defense of further agrees to take such Indemnifiable Claim or other action undertaken as may reasonably be requested by the Indemnitor or its counsel to reduce or eliminate any Claim for which the Indemnitor would have responsibility hereunder. The Indemnitor agrees to reimburse the Indemnitee for any reasonable expenses incurred in so cooperating or acting at the request of the Company Indemnitor or with its counsel. In the consent of event that Seller is the Company (which consent will not be unreasonably withheldIndemnitor and the Claim involves Intellectual Property, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available Buyer shall grant Seller reasonable access to the Company, or (c) any such representation by such counsel chosen by Intellectual Property and the Company would be precluded under the applicable standards relevant and key personnel of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of IndemniteeBuyer.

Defense of Claims. Except for Upon receipt by Indemnitor of a notice from Indemnitee with respect to any Indemnifiable Claim asserted claim of a third party against Indemnitee, and acknowledgment by Indemnitor (whether after resolution of a dispute or in the otherwise) of Indemnitee's right of the Company (as to which Indemnitee will be entitled indemnification hereunder with respect to exclusively control the defense)such claim, the Company will be entitled to participate in Indemnitor shall assume the defense of any Indemnifiable Claim or to assume the defense thereof, such claim with counsel reasonably satisfactory to Indemnitee, with the fees and expenses of such counsel to be paid by Indemnitor, and Indemnitee shall cooperate to the extent reasonably requested by Indemnitor in defense 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 by Indemnitor in connection therewith. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including If Indemnitor shall acknowledge Indemnitee’s 's right to control indemnification and elect to assume the defense of such Indemnifiable Claims. With respect claim, Indemnitee shall have the right to employ its own counsel in any such case, but the period (if any) commencing fees and expenses of such counsel shall be at the time at which the Company notifies Indemnitee that the Company expense of Indemnitee. If Indemnitor has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim against Indemnitee, the Company will Indemnitor shall have the right to control the defense of such Indemnifiable Claim settle any claim for which indemnification has been sought and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed))is available hereunder; provided that, to the extent that if such settlement requires Indemnitee believesto take, after consultation with counsel selected by or prohibits Indemnitee from taking, any action or purports to obligate Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present then Indemnitor shall not settle such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, claim without the prior written consent of Indemnitee, effect any settlement not to be unreasonably withheld or delayed. If Indemnitor does not assume the defense of any threatened or pending Indemnifiable Claim a third party claim and disputes Indemnitee's right to which indemnification, Indemnitee is, or could shall have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are right to participate in the subject matter defense of such Indemnifiable Claim. Neither the Company nor Indemnitee will claim through counsel of its choice, at Indemnitor's expense; provided, however that Indemnitiee shall not be permitted to resolve any such claim subject to this Article X without Indemnitor's consent, not to be unreasonably withhold, condition withheld or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteedelayed.

Defense of Claims. Except With respect to any claim by an Indemnitee for indemnification by the Lessee of an Expense, the Lessee or its insurers shall have the right (in each such case at the Lessee's sole expense) to investigate or, provided that (i) the Lessee or its insurers shall not reserve the right to dispute liability with respect to any Indemnifiable Claim asserted by or insurance policies pursuant to which coverage is sought, (ii) in the right case of the Company Lessee, no Event of Default exists and (as iii) the Lessee shall have first acknowledged in writing to such Indemnitee the Lessee's obligation to indemnify such Indemnitee hereunder in respect of such claim, defend any such claim covered by insurance for which indemnification is sought pursuant to this Article 9 and each Indemnitee will shall cooperate with the Lessee or its insurers with respect thereto, and provided, further, the Lessee shall not be entitled to exclusively assume and control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim such claim if and to the extent such Indemnitee reasonably objects to such control on the ground that an actual or potential material conflict of interest exists where it is advisable for such Indemnitee to assume be represented by separate counsel. Subject to the defense thereofimmediately foregoing sentence, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in where the Lessee or the insurers under a policy of insurance maintained by the Lessee undertake the defense of any Indemnifiable Claim an Indemnitee with respect to such a claim, no additional legal fees or expenses of which the Company has not assumed the defense will not such Indemnitee in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control connection with the defense of such Indemnifiable Claims. With respect to claim shall be indemnified hereunder unless the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or were incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the written request of the Company Lessee or with such insurers. Subject to the consent requirement of any policy of insurance applicable to a claim, an Indemnitee may participate at its own expense at any judicial proceeding controlled by the Lessee or its insurers pursuant to the preceding provisions, to the extent that such party's participation does not, in the opinion of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with independent counsel selected by Indemnitee, that (a) the use of counsel chosen appointed by the Company Lessee or its insurers to represent Indemnitee would present conduct such counsel proceedings, interfere with such control; and such participation shall not constitute a conflict, (b) waiver of the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing indemnification provided in this Agreement will limit Indemnitee’s right Section 9.06. No Indemnitee shall enter into any settlement or other compromise with respect to retain or use his or her own counsel at his or her own expense any claim described in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, Section 9.06 without the prior written consent of Indemniteethe Lessee, effect which consent shall not unreasonably be withheld or delayed, unless such Indemnitee waives its right to be indemnified under this Article 9 with respect to such claim. The Lessee shall not enter into any settlement of any threatened or pending Indemnifiable Claim compromise which the Lessee has not agreed to discharge or with respect to which the Lessee has not agreed to indemnify such Indemnitee is, or could have been, a party unless to such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee's satisfaction.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will shall be entitled to exclusively control the defense)entitled, the Company will be entitled at its option and expense, either to participate in the defense of any Claim relating to an Indemnifiable Claim or Event or, upon written notice to the Indemnitee, to assume the defense thereof, thereof with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense Indemnitee and after delivery of any Indemnifiable Claim of which such notice, the Company has shall not assumed be liable to the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control Agreement for any fees or expenses of counsel subsequently incurred by the defense of such Indemnifiable Claims. With Indemnitee with respect to such Claim; provided that (i) the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will shall have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement retain separate counsel in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred such Claim at the Indemnitee’s expense or, if previously authorized in writing by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company, at the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at expense, and (ii) if the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (aA) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bB) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company or any subsidiary of the Company and Indemnitee the Indemnitee, and the Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or any subsidiary of the Company, or (cC) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then the Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to the Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to Event which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor the Indemnitee will shall unreasonably withhold, condition withhold its or delay its his or her consent to any proposed settlement; provided that the Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or as otherwise set forth in the right last sentence of this Section 9.6, in connection with any claim which may give rise to indemnity under this Article 9 resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice sent at any time to the relevant Indemnitee, assume the defense of any such claim or Proceeding, to the extent that the claim or Proceeding relates only to monetary damages and not the Transferred Assets or the ability to exploit the Transferred Assets provides assurances, reasonably satisfactory to such Indemnitee, that the Indemnifying Party will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. The Indemnifying Party shall select counsel reasonably acceptable to such Indemnitee to conduct the defense of such claim or Proceeding, shall take all steps reasonably necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim or Proceeding in accordance with this Section 9.6, 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, to the extent that the settlement requires only the payment of monetary damages, includes no injunctive provisions or performance requirements of Indemnitee and includes no admission of guilt or liability. Or in the alternative, the Indemnifying Party will seek consent of the Company Indemnitee, (as which consent shall not be unreasonably withheld). If the Indemnifying Party has so elected to which Indemnitee will be entitled to exclusively control assume the defense), the Company will each Indemnitee shall be entitled to participate in (but not control) the defense of any Indemnifiable Claim or to assume the defense thereofsuch action, with its own counsel reasonably satisfactory to Indemniteeand, except as provided herein, at its own expense. The Company’s participation Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party in the defense of any Indemnifiable Claim of which claim or Proceeding being defended by the Company has Indemnifying Party pursuant to this Section 9.6. If the Indemnifying Party does not assumed assume the defense will of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 9.6, or the Indemnifying Party does not in any manner affect acknowledge to the rights of Indemnitee under this Agreement, including the Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement indemnity pursuant hereto in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense entirety of such Indemnifiable Claim or other action undertaken by Indemnitee at the request claim (as such claim may have been modified through written agreement of the Company parties or with arbitration hereunder) or the consent of the Company (which consent will Indemnifying Party does not be unreasonably withheldprovides assurances, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by reasonably satisfactory to such Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee Indemnifying Party will be entitled financially able to retain and use the services of separate counsel (but not more than one law firm plussatisfy such claim in full if such claim or Proceeding is decided adversely, if applicable, local counsel such Indemnitee may defend against such claim or Proceeding in respect of any particular Indemnifiable Claim) such manner as it may deem appropriate at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct cost of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of IndemniteeIndemnifying Party.

Defense of Claims. Except You agree that, during the term of this Agreement and for any Indemnifiable Claim asserted by or in a period of two (2) years after the right date of termination, upon request from the Company, you will reasonably cooperate with the Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate and its affiliates in the defense of any Indemnifiable Claim claims or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which actions that may be made by or against the Company has not assumed the defense will not in or any manner of its affiliates that affect the rights your prior areas of Indemnitee under this Agreementresponsibility, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect except if your reasonable interests are adverse to the period (if any) commencing at Company or its affiliates in such claim or action. To the time at which extent travel is required to comply with the Company notifies Indemnitee that the Company has assumed the defense requirements of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimthis covenant, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldshall, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Companyextent possible, or (c) any provide you with notice at least 15 business days prior to the date on which such representation by such counsel chosen by the Company travel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defenserequired. The Company will not agrees to promptly pay or reimburse you upon demand for all of your reasonable travel and other direct expenses incurred, or to be liable reasonably incurred, to Indemnitee comply, with your obligations under this Agreement for any amounts paid in settlement section. Choice of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consentLaw, Venue, Waiver of Jury Trial THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW. The Company will notTHE EXCLUSIVE VENUE FOR CONDUCTING ANY LEGAL ACTION, without the prior written consent of IndemniteeSUIT, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee isOR PROCEEDING WITH RESPECT TO THE ENFORCEMENT OF OR ANY MATTER ARISING UNDER OR IN CONNECTION WITH, or could have beenOR CONTEMPLATED BY THIS AGREEMENT, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable ClaimINCLUDING THE CONDUCT OF ANY ARBITRATION OR OTHER ALTERNATIVE DISPUTE RESOLUTION PROCEEDINGS, SHALL BE XXXXXX COUNTY, TEXAS, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN XXXXXX COUNTY, TEXAS IN ANY SUIT, ACTION OR PROCEEDING AND WAIVES ANY OBJECTION BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS. Neither the Company nor Indemnitee will unreasonably withholdIN ADDITION, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of IndemniteeEACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION TO VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT THEREOF IN THE SPECIFIED COURTS, AND HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT OR IMPROPER FORUM.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (ai) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company or any subsidiary of the Company and Indemnitee the Indemnitee, and the Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or such subsidiary of the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then the Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s 's expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to the Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s 's prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to Event which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor the Indemnitee will shall unreasonably withhold, condition or delay its or his or her consent to any proposed settlement; provided that the Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee. In no event shall the Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (ai) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company or any subsidiary of the Company and the Indemnitee and the Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, Company or any subsidiary of the Company or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then the Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s Companys expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to the Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s Companys prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to Event which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor the Indemnitee will shall unreasonably withhold, condition withhold its or delay its his or her consent to any proposed settlement; provided that the Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (ai) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company or any subsidiary of the Company and Indemnitee the Indemnitee, and the Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or such subsidiary of the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailingconduct, then the Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one separate law firm plus, if applicable, separate local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to the Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event to which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor the Indemnitee will shall unreasonably withhold, condition or delay its or his or her consent to any proposed settlement; provided that the Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee or that admits misconduct by the Indemnitee or materially limits the Indemnitee’s future activities. In no event shall the Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.

Defense of Claims. Except The Lessee or its insurers shall have the right (in each such case at the Lessee's sole expense) to investigate, defend (and control the defense of) any such claim for any Indemnifiable Claim asserted by which indemnification is sought pursuant to this Article 7 and each Indemnitee shall cooperate with the Lessee or in its insurers with respect thereto, provided that, without limiting the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or Lessee's insurers to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to and control the defense of or to compromise, any such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim, the Company will have the right Lessee shall not be entitled to assume and control the defense of or compromise any such Indemnifiable Claim and will have no obligation under this Agreement in respect claim (A) during the continuance of any attorneys’ Event of Default arising under Sections 16(a), (f), (g) or experts’ (h) of the Lease, (B) if an actual or potential material conflict of interest exists making it advisable in the good faith opinion of such Indemnitee (on the basis of prevailing standards of professional responsibility) for such Indemnitee to be represented by separate counsel or if such proceeding involves the potential imposition of criminal liability on such Indemnitee or (C) if such proceeding will involve any non-de minimis risk of the sale, forfeiture or loss of, or the creation of any Lien (other than Permitted Liens) on the Aircraft, the Trust Indenture Estate or the Trust Estate (unless the Lessee posts a bond or other security reasonably acceptable in form and substance to such Indemnitee) or involve any risk of criminal liability to such Indemnitee and, in any such case, the relevant Indemnitee will, in good faith, undertake the defense of such claim at the expense of the Lessee. Subject to the immediately foregoing sentence, where the Lessee or the insurers under a policy of insurance maintained by the Lessee undertake the defense of an Indemnitee with respect to such a claim, no additional legal fees or expenses or any other costs or expenses paid or incurred by of such Indemnitee in connection with defending the defense of such Indemnifiable Claim claim shall be indemnified hereunder unless the fees or expenses were incurred at the written request of the Lessee or such insurers. Subject to the requirement of any policy of insurance applicable to a claim, an Indemnitee may participate at its own expense at any judicial proceeding controlled by the Lessee or its insurers pursuant to the preceding provisions, to the extent that such party's participation does not, in the reasonable opinion of the independent counsel appointed by the Lessee or its insurers to conduct such proceedings, interfere with the defense of such claim (it being agreed that the making of copies, giving notice of proceedings and the like shall not be considered interference); and such participation shall not constitute a waiver of the indemnification provided in this Section 7.03. No Indemnitee shall enter into any settlement or other compromise with respect to any claim described in this Section 7.03 (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (aclaim involving potential criminal liability) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemniteethe Lessee, effect unless such Indemnitee waives its right to be indemnified under this Article 7 with respect to such claim. The Lessee shall not enter into any settlement or compromise with respect to which the Lessee has not agreed to indemnify such Indemnitee to such Indemnitee's satisfaction or which admits any criminal violation, gross negligence or willful misconduct on the part of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves without the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter prior written consent of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except The Lessee or its insurers shall have the right (in each such case at the Lessee's sole expense) to investigate, defend (and control the defense of) any such claim for any Indemnifiable Claim asserted by which indemnification is sought pursuant to this Article 7 and each Indemnitee shall cooperate with the Lessee or in its insurers with respect thereto, provided that, without limiting the right of the Company (as Lessee's insurers to which Indemnitee will assume and control the defense of, or to compromise, any such claim, the Lessee shall not be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to and control the defense of or compromise any such Indemnifiable Claims. With respect to claim (A) during the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense continuance of any Indemnifiable Claim Event of Default arising under Section 14(a) of the Lease, (B) if an actual or potential material conflict of interest exists making it advisable (on the basis of prevailing standards of professional responsibility) for such Indemnitee to be represented by separate counsel or on the grounds that such proceeding involves the potential imposition of criminal liability on such Indemnitee or (C) such proceeding will involve any material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than Permitted Liens) on the Aircraft or the Trust Estate (unless the Lessee posts a bond or other security reasonably acceptable in form and continuing substance to such Indemnitee) or involve any material risk of criminal liability to such Indemnitee for so long as the Company which it is using its reasonable best efforts to provide an effective defense of not indemnified hereunder and, in any such Indemnifiable Claimcase, the Company will have the right to control relevant Indemnitee will, in good faith, undertake the defense of such Indemnifiable Claim and will have claim at the expense of the Lessee. Subject to the immediately foregoing sentence, where the Lessee or the insurers under a policy of insurance maintained by the Lessee undertake the defense of an Indemnitee with respect to such a claim, no obligation under this Agreement in respect of any attorneys’ or experts’ additional legal fees or expenses or any other costs or expenses paid or incurred by of such Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim claim shall be indemnified hereunder unless the fees or other action undertaken by Indemnitee expenses were incurred at the written request of the Company Lessee or with such insurers. Subject to the consent requirement of any policy of insurance applicable to a claim, an Indemnitee may participate at its own expense at any judicial proceeding controlled by the Lessee or its insurers pursuant to the preceding provisions, to the extent that such party's participation does not, in the opinion of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with independent counsel selected by Indemnitee, that (a) the use of counsel chosen appointed by the Company Lessee or its insurers to represent Indemnitee would present conduct such counsel proceedings, interfere with such control; and such participation shall not constitute a conflict, (b) waiver of the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing indemnification provided in this Agreement will limit Indemnitee’s right Section 7.03. No Indemnitee shall enter into any settlement or other compromise with respect to retain or use his or her own counsel at his or her own expense any claim described in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, Section 7.03 without the prior written consent of Indemniteethe Lessee, effect unless such Indemnitee waives its right to be indemnified under this Article 7 with respect to such claim. The Lessee shall not enter into any settlement or compromise with respect to which the Lessee has not agreed to indemnify such Indemnitee to such Indemnitee's satisfaction or which admits any criminal violation, gross negligence or willful misconduct on the part of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves without the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter prior written consent of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement; provided, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimhowever, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee reasonably believes, after consultation with counsel selected by Indemnitee, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company or any subsidiary of the Company and Indemnitee Indemnitee, and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or any subsidiary of the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to which Event that Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither Subject to the foregoing limitations, neither the Company nor Indemnitee will shall unreasonably withholdwithhold its, condition his or delay its her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will shall be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, in each case at the Company’s own expense, with counsel reasonably satisfactory consented to Indemniteeby Indemnitee (such consent not to be unreasonably withheld, conditioned or delayed). The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is shall be using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will shall have the right to control the defense of such Indemnifiable Claim and will shall have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld, conditioned or delayed)); provided that if (i) previously authorized in writing by the Company, (ii) the Company shall not in fact have employed counsel to assume the defense of such Indemnifiable Claim within a reasonable period of time after having been requested to do so, or (iii) Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded impeded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will shall limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will shall not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has shall have assumed and of which the Company is shall be using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee. Each of Indemnitee and the Company shall reasonably cooperate in the defense of any Indemnifiable Claim with respect to which indemnification is sought hereunder, regardless of whether Indemnitee or the Company is directing the defense thereof.

Defense of Claims. Except In connection with any claim for which indemnification has been sought under this Article IX resulting from or arising out of any Indemnifiable Claim asserted claim or Action against an Indemnitee by or in the right of the Company a Person that is not a Party hereto (as to which Indemnitee will be entitled to exclusively control the defensea “Third Party Claim”), the Company will be entitled to participate in Indemnifying Party may assume the defense of any Indemnifiable Claim such claim or Action (unless such Indemnitee elects not to assume seek indemnity hereunder for such claim), upon written notice to the defense thereof, with counsel reasonably satisfactory to relevant Indemnitee. The Company’s participation in If the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has Indemnifying Parties shall have assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim or Action in accordance with this Section 9.4, the Company will have Indemnifying Parties shall be authorized to consent to a settlement of, or the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect entry of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldjudgment arising from, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one claim or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will notAction, without the prior written consent of such Indemnitee; provided, effect however, that the Indemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof (less any settlement unapplied portion of the Minimum Amount and up to the Maximum Amount); provided, further, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any threatened Indemnitee or pending Indemnifiable Claim to which agree to any restriction that would apply to any Indemnitee isor 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, officers, employees, consultants and agents with respect to such claim. Each Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defense of any claim or Action being defended by the Indemnifying Parties pursuant to this Section 9.4. If the Indemnifying Parties do not assume the defense of any claim or Action resulting therefrom in accordance with the terms of this Section 9.4, such Indemnitee must defend against such claim or Action. The Indemnitee shall not pay, or could permit to be paid, any part of the Third Party Claim unless the Indemnifying Parties consent in writing to such payment, such consent not to be unreasonably withheld or delayed, or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnifying Party is entered against the Indemnitee for such Third Party Claim. If the Indemnitee controls the defense of any such claim or Action in accordance with this Section 9.4 and proposes to settle any such claim or Actions prior to a final judgment thereon or to forego any appeal with respect thereto, then the Indemnitee shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have been, a party unless such the right to participate in the settlement solely involves or assume or reassume the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter defense of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition claim or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of IndemniteeAction.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (ai) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company or any subsidiary of the Company and Indemnitee the Indemnitee, and the Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or any subsidiary of the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then the Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to the Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to Event which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor the Indemnitee will shall unreasonably withhold, condition withhold its or delay its his or her consent to any proposed settlement; provided that the Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that that, if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event to which the Indemnitee is, or could have been, is a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its or his consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement; provided, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimhowever, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; , provided that in all events Indemnitee such separate counsel is acceptable to Company’s directors’ and officers’ liability insurance carrier such that the insurance carrier will not unreasonably interfere with the conduct of the defense by reimbursed the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defensefor such separate counsel’s fees. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay withhold its consent to any proposed settlement; provided provided, however, that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will shall be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Indemnifiable Claim or or, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is shall be using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will shall have the right to control the defense of such Indemnifiable Claim and will shall have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses actually and reasonably paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeXxxxxxxxxx, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will shall limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will shall not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has shall have assumed and of which the Company is shall be using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any claim or Proceeding relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement; provided, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimthat, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim claim or Proceeding (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, Company or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm firm, plus, if applicable, local counsel in respect of any particular Indemnifiable Claimclaim or Proceeding) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right expense pursuant to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defenseSection 7. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of IndemniteeIndemnitee (not to be unreasonably withheld, conditioned or delayed), effect any settlement of any threatened claim or pending Proceeding relating to an Indemnifiable Claim to Event in respect of which Indemnitee is, has had or could have beenany expense, a party cost, charge, Liability or loss unless (i) such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability Liability on any claims all causes of action that are the subject matter of such Indemnifiable Claim. Neither claim or Proceeding and (ii) all such expenses, costs, charges, Liabilities and losses will be paid or reimbursed by or for the Company nor Indemnitee will unreasonably withholdwithout any liability, condition obligation or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release responsibility on the part of Indemnitee.

Defense of Claims. Except The Lessor agrees to notify the Lessee of any claim made against it for which the Lessee may be liable pursuant to this Section 16 and, if the Lessee requests, to contest or allow the Lessee to contest such claim. If any Indemnifiable Claim asserted by or in Lease Event of Default shall have occurred and be continuing, no contest shall be required, and any contest which has begun shall not be required to be continued to be pursued, unless arrangements to secure the right payment of the Company (as Lessee’s obligations pursuant to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel this Section 16 hereunder have been made and such arrangements are reasonably satisfactory to Indemniteethe Lessor. The CompanyLessor shall not settle any such claim without the Lessee’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreementconsent, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld. Defense of any claim referred to in this Section 16 for which indemnity may be required shall, conditioned or delayed)); provided that if Indemnitee believesat the option and request of the Indemnified Person, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen be conducted by the Company Lessee or the Guarantor, as applicable. The Lessee or the Guarantor, as the case may be, will inform the Indemnified Person of any such claim and of the defense thereof and will provide copies of material documents relating to represent Indemnitee would present any such counsel with a conflict, (b) the named parties claim or defense to such Indemnified Person upon request. Such Indemnified Person may participate in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) defense at the Company’s its own expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will such participation does not unreasonably interfere with the conduct Lessee’s or the Guarantor’s assertion of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective such claim or defense. The Company Lessee and the Guarantor agree that no Indemnified Person will not be liable to Indemnitee under the Lessee or the Guarantor, as applicable, for any claim caused directly or indirectly by the inadequacy of any Group II Truck leased for any purpose or any deficiency or defect therein or the use or maintenance thereof or any repairs, servicing or adjustments thereto or any delay in providing or failure to provide such repairs, servicing or adjustments or any interruption or loss of service or use thereof or any loss of business, all of which shall be the risk and responsibility of the Lessee or the Guarantor. The rights and indemnities of each Indemnified Person hereunder are expressly made for the benefit of, and will be enforceable by, each Indemnified Person notwithstanding the fact that such Indemnified Person is either no longer a party to (or entitled to receive the benefits of) this Agreement, or was not a party to (or entitled to receive the benefits of) this Agreement at its outset. Except as otherwise set forth herein, nothing herein shall be deemed to require the Lessee or the Guarantor to indemnify the Lessor for any amounts paid in settlement of any threatened the Lessor’s acts or pending Indemnifiable Claim effected without the Company’s prior written consentomissions which constitute gross negligence or willful misconduct. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on This general indemnity shall not affect any claims that are of the subject matter of such Indemnifiable Claim. Neither type discussed above which the Company nor Indemnitee will unreasonably withhold, condition Lessee or delay its consent to any proposed settlement; provided that Indemnitee the Guarantor may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteehave against the manufacturer.

Defense of Claims. Except for (a) In connection with any Indemnifiable Claim asserted claim which may give rise to indemnity under this Article IX resulting from or arising out of any claim or Proceeding against an Indemnitee by or in a Person that is not a party hereto, the right of the Company (as Indemnifying Party may, subject to which Indemnitee will be entitled to exclusively control the defenseSection 9.04(b), the Company will be entitled to participate in assume the defense of any Indemnifiable Claim such claim or Proceeding (unless such Indemnitee elects not to assume seek indemnity hereunder for such claim), upon written notice to the defense thereofrelevant Indemnitee, if all Indemnifying Parties with counsel respect to such claim or Proceeding jointly acknowledge to the Indemnitee its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, reasonably satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. The Company’s participation in If the Indemnifying Parties assume the defense of any Indemnifiable Claim of which such claim or Proceeding, the Company has not assumed the defense will not in any manner affect the rights of Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee under this Agreement, including Indemnitee’s right to control conduct the defense of such Indemnifiable Claimsclaim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. With respect to If the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has Indemnifying Parties shall have assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim or Proceeding in accordance with this Section 9.04, the Company will have Indemnifying Parties shall be authorized to consent to a settlement of, or the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect entry of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldjudgment arising from, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one claim or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will notProceeding, without the prior written consent of such Indemnitee; PROVIDED, effect HOWEVER, that the Indemnifying Parties 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 Parties shall not be authorized to encumber any settlement of the assets of any threatened Indemnitee or pending Indemnifiable Claim to which agree to any restriction that would apply to any Indemnitee isor to its conduct of business; and PROVIDED, or could have beenFURTHER, that a party unless condition to any such settlement solely involves the payment of money and includes shall be a complete and unconditional release of such Indemnitee from and its Affiliates, officers, employees, consultants and agents with respect to such claim. Subject to Section 9.04(b), such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense and the Indemnifying Parties shall provide such Indemnitee with reasonable access to all liability on materials relating to the defense of the action and otherwise cooperate with such Indemnitee and its counsel in connection with the Indemnitee's participation in such defense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defense of any claims that are claim or Proceeding being defended by the subject matter Indemnifying Parties pursuant to this Section 9.04. If the Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 9.04(a), such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteedefend against such claim or Proceeding.

Defense of Claims. Except Seller shall have the right to undertake by counsel of its own choosing, the defense of a claim by a third party which has resulted in a claim for indemnification hereunder. If Seller shall elect not to undertake such defense, or within a reasonable time after notice of any Indemnifiable Claim asserted such claim from the Indemnified Persons shall fail to defend in a reasonable manner, the Indemnified Persons (upon further written notice to Seller) shall have the right to undertake the defense, compromise or settlement of such claim, by counsel or in other representatives of their own choosing, on behalf of and for the account and risk of Seller (subject to the right of Seller to assume defense of such claim at any time prior to settlement, compromise or final determination thereof). Notwithstanding anything to the Company contrary herein, if there is a reasonable probability that a claim may materially and adversely affect the Indemnified Persons, other than as a result of money damages or other money payments, (as to which Indemnitee will be entitled to exclusively control i) all Indemnified Persons shall have the defense)right, the Company will be entitled at their own cost and expense, to participate in the defense, compromise or settlement of the claim, (ii) Seller shall not, without all Indemnified Persons' written consent, settle or compromise any claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to all Indemnified Persons of a release from all liability in respect of such claim, and (iii) in the event that Seller undertakes defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim, the Company will Indemnified Persons, by counsel or other representatives of their own choosing and at their sole cost and expense, shall have the right to control consult with Seller and its counsel concerning such claim and Seller and the defense of such Indemnifiable Claim Indemnified Persons and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim their respective counsel or other action undertaken by Indemnitee at the request of the Company or representatives shall cooperate with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company respect to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteeclaim.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by IndemniteeXxxxxxxxxx, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company Company, or any subsidiary of the Company, and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or any subsidiary of the Company, or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim to Event which the Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee. In no event shall Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.

Defense of Claims. Except for The Sublessor agrees to notify any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will be entitled to participate in the defense relevant Sublessee of any Indemnifiable Claim claim made against it for which such Sublessee may be liable pursuant to this SECTION 16 and, if such Sublessee requests, to contest or allow such Sublessee to assume contest such claim. If any AESOP I Operating Sublease Event of Default shall have occurred and be continuing, no contest shall be required, and any contest which has begun shall not be required to be continued to be pursued, unless arrangements to secure the defense thereof, with counsel payment of such Sublessee's obligations pursuant to this Section 16 hereunder have been made and such arrangements are reasonably satisfactory to Indemniteethe Sublessor. The Company’s participation in the defense of Sublessor shall not settle any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreementsuch claim without such Sublessee's consent, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld. Defense of any claim referred to in this SECTION 16 for which indemnity may be required shall, conditioned or delayed)); provided that if Indemnitee believesat the option and request of the Indemnified Person, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen be conducted by the Company relevant Sublessee. Such Sublessee will inform the Indemnified Person of any such claim and of the defense thereof and will provide copies of material documents relating to represent Indemnitee would present any such counsel with a conflict, (b) the named parties claim or defense to such Indemnified Person upon request. Such Indemnified Person may participate in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) defense at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her its own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will PROVIDED such participation does not unreasonably interfere with the conduct such Sublessee's assertion of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective such claim or defense. The Company Each Sublessee agrees that no Indemnified Person will not be liable to Indemnitee under such Sublessee for any claim caused directly or indirectly by the inadequacy of any Vehicle leased by such Sublessee for any purpose or any deficiency or defect therein or the use or maintenance thereof or any repairs, servicing or adjustments thereto or any delay in providing or failure to provide such repairs, servicing or adjustments or any interruption or loss of service or use thereof or any loss of business, all of which shall be the risk and responsibility of such Sublessee. The rights and indemnities of each Indemnified Person hereunder are expressly made for the benefit of, and will be enforceable by, each Indemnified Person notwithstanding the fact that such Indemnified Person is either no longer a party to (or entitled to receive the benefits of) this Agreement, or was not a party to (or entitled to receive the benefits of) this Agreement at its outset. Except as otherwise set forth herein, nothing herein shall be deemed to require any Sublessee to indemnify the Sublessor for any amounts paid in settlement of any threatened the Sublessor's acts or pending Indemnifiable Claim effected without the Company’s prior written consentomissions which constitute gross negligence or willful misconduct. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on This general indemnity shall not affect any claims that are of the subject matter of such Indemnifiable Claim. Neither type discussed above which any Sublessee may have against the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of IndemniteeManufacturer.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company Corporation (as to which Indemnitee will shall be entitled to exclusively control the defense), the Company will Corporation shall be entitled to participate in the defense of any Indemnifiable Claim or Proceeding or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The CompanyCorporation’s participation in the defense of any Indemnifiable Claim or Proceeding of which the Company Corporation has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable ClaimsClaims or Proceedings. With respect to the period (if any) commencing at the time at which the Company Corporation notifies Indemnitee that the Company Corporation has assumed the defense of any Indemnifiable Claim or Proceeding and continuing for so long as the Company is Corporation shall be using its reasonable best efforts to provide an effective defense of such Indemnifiable ClaimClaim or Proceeding, the Company will Corporation shall have the right to control the defense of such Indemnifiable Claim or Proceeding and will shall have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim or Proceeding (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the CompanyCorporation’s defense of such Indemnifiable Claim or Proceeding or other action undertaken by Indemnitee at the request of the Company Corporation or with the consent of the Company Corporation (which consent will shall not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company Corporation to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim or Proceeding (including any impleaded impeded parties) include both the Company Corporation and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the CompanyCorporation, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable ClaimClaim or Proceeding) at the CompanyCorporation’s expense. Nothing in this Agreement will shall limit Indemnitee’s right to retain or use his or her Indemnitee’s own counsel at his or her Indemnitee’s own expense in connection with any Indemnifiable ClaimClaim or Proceeding; provided that in all events Indemnitee will shall not unreasonably interfere with the conduct of the defense by the Company Corporation of any Indemnifiable Claim or Proceeding that the Company has Corporation shall have assumed and of which the Company is Corporation shall be using its reasonable best efforts to provide an effective defense. The Company will Corporation shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim or Proceeding effected without the CompanyCorporation’s prior written consent. The Company will not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for (a) In connection with any Indemnifiable Claim asserted claim which may give rise to indemnity under this Article 7 resulting from or arising out of any claim or Proceeding against an Indemnitee by or in the right of the Company a Person that is not a party hereto (as to which Indemnitee will be entitled to exclusively control the defensea "Third Party Claim"), the Company will be entitled Indemnifying Party may, subject to participate in Section 7.4(b), assume the defense of any Indemnifiable Claim such claim or Proceeding (unless such Indemnitee elects not to assume seek indemnity hereunder for such claim), upon written notice to the defense thereofrelevant Indemnitee, if all Indemnifying Parties with counsel respect to such claim or Proceeding jointly acknowledge to the Indemnitee its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, reasonably satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. The Company’s participation in If the Indemnifying Parties assume the defense of any Indemnifiable Claim of which such claim or Proceeding, the Company has not assumed the defense will not in any manner affect the rights of Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee under this Agreement, including Indemnitee’s right to control conduct the defense of such Indemnifiable Claimsclaim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. With respect to If the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has Indemnifying Parties shall have assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim or Proceeding in accordance with this Section 7.4, the Company will have Indemnifying Parties shall be authorized to consent to a settlement of, or the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect entry of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldjudgment arising from, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one claim or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will notProceeding, without the prior written consent of such Indemnitee; provided, effect however, that the Indemnifying Parties 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 Parties shall not be authorized to encumber any settlement of the assets of any threatened Indemnitee or pending Indemnifiable Claim to which agree to any restriction that would apply to any Indemnitee isor to its conduct of business; and provided, or could have beenfurther, that a party unless condition to any such settlement solely involves the payment of money and includes shall be a complete and unconditional release of such Indemnitee from and its Affiliates, officers, employees, consultants and agents with respect to such claim. Subject to Section 7.4(b), such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense and the Indemnifying Parties shall provide such Indemnitee with reasonable access to all liability on materials relating to the defense of the action and otherwise cooperate with such Indemnitee and its counsel in connection with the Indemnitee's participation in such defense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defense of any claims that are claim or Proceeding being defended by the subject matter Indemnifying Parties pursuant to this Section 7.4. If the Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 7.4(a), such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteedefend against such claim or Proceeding.

Defense of Claims. Except for (a) In connection with any Indemnifiable Claim asserted claim which may give rise to indemnity under this Article IX resulting from or arising out of any claim or Proceeding brought by or in a third party against an Indemnitee by a Person that is not a party hereto, the right of the Company (as Indemnifying Party may, subject to which Indemnitee will be entitled to exclusively control the defenseSection 9.04(b), the Company will be entitled to participate in assume the defense of any Indemnifiable Claim such claim or Proceeding, upon written notice to assume the defense thereofrelevant Indemnitee, if all Indemnifying Parties with counsel respect to such claim or Proceeding jointly acknowledge to the Indemnitee its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, reasonably satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full (subject to the Indemnification Limit) if such claim or Proceeding is decided adversely. The Company’s participation in If the Indemnifying Parties assume the defense of any Indemnifiable Claim of which such claim or Proceeding, the Company has not assumed the defense will not in any manner affect the rights of Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee under this Agreement, including Indemnitee’s right to control conduct the defense of such Indemnifiable Claimsclaim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. With respect to If the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has Indemnifying Parties shall have assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim or Proceeding in accordance with this Section 9.04, the Company will have Indemnifying Parties shall be authorized to consent to a settlement of, or the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect entry of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldjudgment arising from, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one claim or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will notProceeding, without the prior written consent of such Indemnitee; provided, effect however, that the Indemnifying Parties 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 Parties shall not be authorized to encumber any settlement of the assets of any threatened Indemnitee or pending Indemnifiable Claim to which agree to any restriction that would apply to any Indemnitee isor to its conduct of business; and provided, or could have beenfurther, that a party unless condition to any such settlement solely involves the payment of money and includes shall be a complete and unconditional release of such Indemnitee from all liability on and its Affiliates, officers, employees, consultants and agents with respect to such claim. Subject to Section 9.04(b), such Indemnitee shall be entitled to participate in (but not control) the defense of any claims that are such action, with its own counsel and at its own expense. Notwithstanding the subject matter preceding sentence, an Indemnitee shall have the right to conduct the defense of any claim or Proceeding until such Indemnifiable Claim. Neither time as the Company nor Indemnitee will unreasonably withholdIndemnifying Parties assume the defense thereof in accordance with the terms hereof, condition or delay its consent to any proposed settlement; provided that such Indemnitee may withhold not (i) take any action that would materially adversely affect the right of the Indemnifying Parties to assert any reasonable defense or (ii) settle such claim or Proceeding without the written consent of the Indemnifying Parties, which consent may not be unreasonably withheld. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defense of any claim or Proceeding being defended by the Indemnifying Parties pursuant to this Section 9.04. If the Indemnifying Parties do not assume the defense of any settlement that does not provide a complete and unconditional release claim or Proceeding resulting therefrom in accordance with the terms of Indemniteethis Section 9.04(a), such Indemnitee may defend against such claim or Proceeding.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the The Company (as to which Indemnitee will be entitled to exclusively control the defense), the Company will shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Claim Event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (ai) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (bii) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company or any subsidiary of the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, Company or any subsidiary of the Company or (ciii) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s 's expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events any counsel chosen by Indemnitee will not unreasonably interfere shall agree to comply with the conduct Company’s outside counsel guidelines, as in effect at the time of the defense by the Company engagement of such counsel, with respect to any Indemnifiable Claim that the Company has assumed and of matter for which the Company indemnification is using its reasonable best efforts to provide an effective defensesought under this Agreement. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event effected without the Company’s 's prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Claim relating to an Indemnifiable Claim Event to which Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition withhold its or delay its his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee. To the fullest extent permitted by Nevada law, the Company’s assumption of the defense of a Claim pursuant to this Section 14 will constitute an irrevocable acknowledgement by the Company that any Expenses incurred by or for the account of Indemnitee in connection therewith are indemnifiable by the Company under Section 2.

Defense of Claims. Except for (a) In connection with any Indemnifiable Claim asserted claim which may give rise to indemnity under this Article IX resulting from or arising out of any claim or Proceeding against an Indemnitee by or in a Person that is not a party hereto, the right of the Company (as Indemnifying Party may, subject to which Indemnitee will be entitled to exclusively control the defenseSection 9.04(b), the Company will be entitled to participate in assume the defense of any Indemnifiable Claim such claim or Proceeding (unless such Indemnitee elects not to assume seek indemnity hereunder for such claim), upon written notice to the defense thereofrelevant Indemnitee, if all Indemnifying Parties with counsel respect to such claim or Proceeding jointly acknowledge to the Indemnitee its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, reasonably satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. The Company’s participation in If the Indemnifying Parties assume the defense of any Indemnifiable Claim of which such claim or Proceeding, the Company has not assumed the defense will not in any manner affect the rights of Indemnifying Parties shall select counsel reasonably acceptable to such Indemnitee under this Agreement, including Indemnitee’s right to control conduct the defense of such Indemnifiable Claimsclaim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. With respect to If the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has Indemnifying Parties shall have assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimclaim or Proceeding in accordance with this Section 9.04, the Company will have Indemnifying Parties shall be authorized to consent to a settlement of, or the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect entry of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheldjudgment arising from, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one claim or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will notProceeding, without the prior written consent of such Indemnitee; provided, effect however, that the Indemnifying Parties 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 Parties shall not be authorized to encumber any settlement of the assets of any threatened Indemnitee or pending Indemnifiable Claim to which agree to any restriction that would apply to any Indemnitee isor to its conduct of business; and provided, or could have beenfurther, that a party unless condition to any such settlement solely involves the payment of money and includes shall be a complete and unconditional release of such Indemnitee from and its Affiliates, officers, employees, consultants and agents with respect to such claim. Subject to Section 9.04(b), such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense and the Indemnifying Parties shall provide such Indemnitee with reasonable access to all liability on materials relating to the defense of the action and otherwise cooperate with such Indemnitee and its counsel in connection with the Indemnitee's participation in such defense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defense of any claims that are claim or Proceeding being defended by the subject matter Indemnifying Parties pursuant to this Section 9.04. If the Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 9.04(a), such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemniteedefend against such claim or Proceeding.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will be entitled to exclusively control the defense), the The Company will be entitled to participate in the defense of any Indemnifiable Claim claim that may be subject to indemnification hereunder or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee reasonably believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflictan actual or potential conflict of interest, (b) the named parties in any such Indemnifiable Claim claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall reasonably conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, Company or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claimclaim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim claim that may be subject to indemnification hereunder effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim claim that may be subject to indemnification hereunder which Indemnitee is, is or could have been, been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any all claims that are the subject matter of such Indemnifiable Claimclaim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition withhold its or delay its his consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a such complete and unconditional release of Indemnitee. To the fullest extent permitted by Delaware law, the Company’s assumption of the defense of a claim pursuant to this Section 8 will constitute an irrevocable acknowledgement by the Company that any Expenses incurred by or for the account of Indemnitee in connection therewith are indemnifiable by the Company hereunder.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right (a) If a Change of Control shall not have occurred, the Company (as to which Indemnitee will shall be entitled to exclusively control the defense), the Company will be entitled to participate in assume the defense of any Indemnifiable Claim or to assume the defense thereof, Proceeding with counsel reasonably satisfactory acceptable to IndemniteeIndemnitee upon delivery of written notice to Indemnitee of its election to do so. The Company’s participation in the defense of any Indemnifiable Claim of which After the Company has not assumed assumes the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimdefense, the Company will have the right to control the defense of such Indemnifiable Claim and will have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid fees or expenses of counsel subsequently incurred by Indemnitee with respect to such Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in settlement respect of any threatened such Proceeding at Indemnitee’s expense and (ii) if the employment of counsel by Indemnitee has been previously authorized in writing by the Company or pending Indemnifiable Claim effected Indemnitee shall have reasonably concluded upon the advice of counsel that (x) there is a conflict of interest between the Company and Indemnitee in the conduct of the defense of such Proceeding or (y) Indemnitee has one or more legal defenses available to him which are different from or additional to those available to the Company in such Proceeding, then, in each such case, the fees and expenses of Indemnitee’s counsel shall be at the Company’s expense. The Company shall not settle any Proceeding (in whole or in part) which would impose any Expense, Liability or limitation on Indemnitee without Indemnitee’s prior written consent, such consent not to be unreasonably withheld. Indemnitee shall not settle any Proceeding (in whole or in part) which would impose any Expense, Liability or limitation on the Company without the Company’s prior written consent, such consent not to be unreasonably withheld. The Company will notTo the fullest extent permitted by applicable law, without the prior written consent Company’s assumption of Indemnitee, effect any settlement the defense of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves Proceeding will constitute an acknowledgment by the payment of money and includes a complete and unconditional release Company that any Expenses of Indemnitee from all liability on any claims that incurred in connection therewith are the subject matter of such Indemnifiable Claim. Neither indemnifiable by the Company nor Indemnitee will unreasonably withholdunder this Agreement, condition or delay its consent subject to any proposed settlement; provided that obligation Indemnitee may withhold consent has under Section 4.02 to any settlement that does not provide a complete and unconditional release of Indemniteerepay such Expenses.

Defense of Claims. Except The Company or its insurers shall have the right (in each such case at the Company's sole expense) to investigate, defend (and control the defense of) any such claim for any Indemnifiable Claim asserted by which indemnification is sought pursuant to this Article 7 and each Indemnitee shall cooperate with the Company or in its insurers with respect thereto, provided that, without limiting the right of the Company's insurers to assume and control the defense of, or to compromise, any such claim, the Company (as to which Indemnitee will shall not be entitled to exclusively control the defense), the Company will be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to and control the defense of or compromise any such Indemnifiable Claims. With respect claim (A) during the continuance of any Event of Default arising under Section 14(a) of the Lease, (B) if an actual or potential material conflict of interest exists making it advisable (on the basis of prevailing standards of professional responsibility) for such Indemnitee to be represented by separate counsel or on the period grounds that such proceeding involves the potential imposition of criminal liability on such Indemnitee or (if anyC) commencing at such proceeding will involve any material risk of the time at which sale, forfeiture or loss of, or the creation of any Lien (other than Permitted Liens) on the Aircraft or the Trust Estate (unless the Company notifies posts a bond or other security reasonably acceptable in form and substance to such Indemnitee) or involve any material risk of criminal liability to such Indemnitee that the Company has assumed the defense of for which it is not indemnified hereunder and, in any Indemnifiable Claim and continuing for so long as the Company is using its reasonable best efforts to provide an effective defense of such Indemnifiable Claimcase, the Company will have the right to control relevant Indemnitee will, in good faith, undertake the defense of such Indemnifiable Claim and will have claim at the expense of the Company. Subject to the immediately foregoing sentence, where the Company or the insurers under a policy of insurance maintained by the Company undertake the defense of an Indemnitee with respect to such a claim, no obligation under this Agreement in respect of any attorneys’ or experts’ additional legal fees or expenses or any other costs or expenses paid or incurred by of such Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim claim shall be indemnified hereunder unless the fees or other action undertaken by Indemnitee expenses were incurred at the written request of the Company or with such insurers. Subject to the consent requirement of the Company (which consent will not be unreasonably withheldany policy of insurance applicable to a claim, conditioned or delayed)); provided that if an Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen may participate at its own expense at any judicial proceeding controlled by the Company to represent Indemnitee would present such counsel with a conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available its insurers pursuant to the Companypreceding provisions, or (c) any to the extent that such representation by such party's participation does not, in the opinion of the independent counsel chosen appointed by the Company would be precluded under or its insurers to conduct such proceedings, interfere with such control; and such participation shall not constitute a waiver of the applicable standards of professional conduct then prevailing, then Indemnitee will be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing indemnification provided in this Agreement will limit Indemnitee’s right Section 7.03. No Indemnitee shall enter into any settlement or other compromise with respect to retain or use his or her own counsel at his or her own expense any claim described in connection with any Indemnifiable Claim; provided that in all events Indemnitee will not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has assumed and of which the Company is using its reasonable best efforts to provide an effective defense. The Company will not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will not, Section 7.03 without the prior written consent of Indemniteethe Company, effect unless such Indemnitee waives its right to be indemnified under this Article 7 with respect to such claim. The Company shall not enter into any settlement or compromise with respect to which the Company has not agreed to indemnify such Indemnitee to such Indemnitee's satisfaction or which admits any criminal violation, gross negligence or willful misconduct on the part of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves without the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter prior written consent of such Indemnifiable Claim. Neither the Company nor Indemnitee will unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee will shall be entitled to exclusively control the defense), the Company will shall be entitled to participate at its own expense in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing for so long as the Company is shall be using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company will shall have the right to control the defense of such Indemnifiable Claim and will shall have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent will shall not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with a an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel chosen by the Company would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee will shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement will shall limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee will shall not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company has shall have assumed and of which the Company is shall be using its reasonable best efforts to provide an effective defense. The Company will shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company will shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee will shall unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.