Common use of Third Party Actions Clause in Contracts

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM"), the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX Article V (a "THIRD PARTY CLAIM"“Third Party Claim”), the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless except to the extent the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him the Indemnifying Party from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their the Indemnifying Party’s choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify and defend the Indemnified Party, Party and agrees in writing to the extent provided in this Agreementprovide such defense and indemnification, from and against any damages Indemnifiable Damages with respect to which such Indemnified Party is entitled to indemnification and defense under SECTION 9.2 or SECTION 9.3 Section 5.1 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently; and (d) representation of both the Indemnified Party and the Indemnifying Party by the counsel selected by the Indemnifying Party would not create an actual or potential conflict of interest between the Indemnified Party and the Indemnifying Party. In all other cases, the Indemnified Party shall be entitled to retain its own separate counsel and control the defense of the Third Party Claim, all at the sole cost and expense of the Indemnifying Party. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel counsel, at the Indemnifying Party’s sole cost and expense, to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their its election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX Article V for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentencethis paragraph, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this SectionAgreement, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense or claim to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability release, in respect of such claim, form and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation substance acceptable to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.the

Third Party Actions. With respect In the event any claim is made, suit is brought, or other proceeding instituted against a party to each claim made by this Agreement which involves or appears reasonably likely to involve a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM")Loss, the Indemnified Party will, within 10 days after receipt of notice of any such claim, suit, or proceeding for which indemnification may be sought, notify the Indemnifying Party in writing of the commencement thereof; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party can demonstrate actual monetary prejudice as a direct or indirect result of such failure. The Indemnified Party may elect, within 30 days after the Indemnifying Party's receipt of such notice, or five days before the return date required by any citation, claim, or other statute, whichever occurs earlier, to contest or defend against such claim at the Indemnifying Party's expense, and shall give prompt written notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give commencement of such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party)defense. The Indemnifying Party will have the right Party, its subsidiaries, successors, and assigns shall be entitled to defend the Indemnified Party against any Third Party Claim participate with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen such event (15) days after receipt from the Indemnified Party of notice of the claim, that at the Indemnifying Party will indemnify Party's cost and expense). In the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") event that the Indemnified Party may suffer resulting fromdoes not elect to contest, arising out ofdefend, relating to, in the nature ofsettle, or caused by the claim; (b) pay the claim seeks the recovery of solely money damages and does not contain a claim for an injunctionas provided above, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts Party, its subsidiaries, successors, or assigns shall have the defense of exclusive right to prosecute, defend, compromise, settle, or pay the claim actively in its sole discretion and diligently. If there is a conflict pursue its rights under this Agreement but shall not be entitled in any way to release, waive, settle, modify, or pay such claim without the consent of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party. Each party, then the Indemnified Party its subsidiaries, successors, and assigns shall have the right to select separate counsel to participate cooperate in the defense of such action on behalf and the records of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not each shall be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection other with any respect to such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.

Third Party Actions. With respect to each claim made by If a third party commences any action or makes any demand against either Party for which an Indemnified such Party (as hereinafter defined“lndemnified Party”) seeks is entitled to indemnification under this ARTICLE IX Agreement, such Indemnified Party will promptly notify the other Party (a "THIRD PARTY CLAIM")“Indemnifying Party”) in writing of such action or demand; provided, however, that if the Indemnified Party shall give assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party ClaimParty, provided that such failure to give such notice promptly shall not relieve or limit the obligations of in any way the Indemnifying Party’s obligation to indemnify the Indemnified Party unless except to the extent that such failure materially prejudices the Indemnifying Party has been materially prejudiced thereby (and such failure Party’s ability to notify defend the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party)action. The Indemnifying Party will have the right may, at its own expense and without limiting its obligation to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the actionParty, or (iii) the Indemnifying Party has not authorized the employment of counsel for may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, assume the defense of such action with counsel reasonably acceptable to the Indemnified Party. In any event, the Party at that has assumed the expense defense of such action shall provide the other Party with copies of all notices, pleadings, and other papers filed or served in such action. Neither Party shall make any settlement or adjustment without the other Party’s prior written consent, which consent (a) in the case of the Indemnifying Party. Notwithstanding anything to , will not be unreasonably withheld if the contrary in this Section, settlement or adjustment involves only the payment of money damages by the Indemnifying Party shall have no right to settle or compromise, without and (b) in the prior written consent case of the Indemnified Party, may be withheld for any action for which they have assumed the defense to the extent reason if the settlement or compromise provides for any injunctive adjustment involves performance or other equitable relief against admission by the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX Article (a "THIRD PARTY CLAIMThird Party Claim"), the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (ai) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that Indemnifiable Damage the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (bii) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (ciii) the Indemnifying Party conducts the defense of the claim actively and diligently. If Subject to the foregoing limitations, with respect to any such action commenced by a third party, the Indemnifying Party shall have the right, to the extent that they may wish, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party; provided, however, if there is a conflict of interest, however, that interest which would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX Article X for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. Article X. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance 55 with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4Section, an "INDEMNIFIED PARTYIndemnified Party" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTYIndemnifying Party" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.

Third Party Actions. With If any third Person shall commence an Action against any Indemnified Party with respect to each any matter (a “Third Party Action”) which may give rise to a claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM")Article IX, then the Indemnified Party shall give prompt notify the Indemnifying Party, in writing promptly after becoming aware of such Third Party Action, describing in reasonable detail the Third Party Action (such notice is called a “Action Notice”), and including a reference to the specific provisions hereof in respect of which indemnification is sought. It is agreed that no delay on the part of any Indemnified Party in notifying the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless from its obligations hereunder, except to the extent that the Indemnifying Party has been or its right to conduct defense of such claim is actually and materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party)thereby. The Indemnifying Party will have the right may elect to defend the Indemnified Party against any such Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claimAction; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interestprovided, however, that would prevent counsel for if, by 5:00 p.m., New York, New York time on the tenth (10th) Business Day after delivery of the Action Notice, the Indemnifying Party from also representing does not respond to the Indemnified Party as reasonably determined by Action Notice, or responds to the Indemnified PartyAction Notice but elects not to assume the defense, then the Indemnified Party shall have the right to select separate defend against and settle such Third Party Action as the Indemnified Party deems appropriate, and the Indemnifying Party shall pay all Damages resulting from such Third Party Action in accordance herewith; provided, further, that if the Indemnifying Party affirmatively denies any indemnification obligation in its response to the Action Notice, any right of the Indemnified Party to recover from the Indemnifying Party shall depend on the resolution of the dispute regarding the right of indemnity in accordance with Section 10.5. Notwithstanding anything herein to the contrary, if the Indemnifying Party notifies the Indemnified Party that it will defend against any Third Party Action: (i) such defense or settlement shall be at the sole cost of the Indemnifying Party; (ii) the Indemnifying Party and its counsel shall (A) conduct such defense or settlement at all times in good faith, (B) at the request of the Indemnified Party provide periodic updates as to participate in the defense status of such action on behalf defense, and (C) not compromise or settle such Third Party Action without the prior written consent of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless ; (iiii) the Indemnified Party (A) shall have employed counsel in accordance reasonably cooperate with the provisions Indemnifying Party, including making available to the Indemnifying Party, relevant witnesses and pertinent documents, (B) may elect to employ its own counsel and participate in such defense at the Indemnified Party’s cost and expense, and (C) notwithstanding the Indemnifying Party’s election to defend against the Third Party Action, upon written notice to the Indemnifying Party, elect to employ its own counsel and assume control of the preceding sentence, defense of the Third Party Action if (ii1) the Indemnifying Party is also a Person against whom the Third Party Action is asserted and the Indemnified Party has been advised by counsel that representation of both parties by the same counsel could present a conflict of interest; or (2) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party; provided, that the assumption of control of the defense of a Third Party to represent Action by the Indemnified Party within a reasonable time after notice of the commencement of the action, or pursuant to this clause (iiiC) shall not relieve the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything its obligation to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of indemnify and hold harmless the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defineddefined below) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM")Section 7, the such Indemnified Party shall give prompt notice to notify the Indemnifying Party (as hereinafter defineddefined below) thereof within a reasonable period of time after assertion thereof; provided, further, that the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to so notify the Indemnifying Party will shall not relieve it or him from any other liability he or it may have to the affect such Indemnified Party). The Indemnifying Party will have the 's right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and indemnification hereunder except to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Party's interests are actually prejudiced thereby. The Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right within thirty (30) days after receipt of such notice to select separate assume the control of the defense, compromise or settlement of any such action, suit, proceeding, claim, liability, demand or assessment, including, at its own expense, employment of counsel; provided, however, that if the Indemnifying Party shall have exercised its right to assume such control, the Indemnified Party (i) may, in its sole discretion, employ counsel to participate represent it (in additional to counsel employed by the Indemnifying Party, and in the defense of such action on behalf of latter case, at the Indemnified Party. After notice from 's sole expense) in any such matter, and in such event counsel selected by the Indemnifying Party shall be required to the Indemnified Party cooperate with such counsel of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection such defense, compromise or settlement for the purpose of informing and sharing information with such Indemnified Party, and (ii) will, at its own expense, make available to the defense thereof, unless (i) Indemnifying Party those employees of the Indemnified Party or any affiliate of the Indemnified Party whose assistance, testimony or presence is necessary to assist the Indemnifying Party in evaluating and in defending any such action, suit, proceeding, claim, liability, demand or assessment; provided, however, that any such access shall be conducted in such a manner as not to interfere unreasonably with the operations of the business of the Indemnified Party and its affiliates. The Indemnifying Party, if it shall have employed counsel in accordance with the provisions assumed control of the preceding sentencedefense, (ii) or the Indemnified Party, if the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the assumed such control, shall not compromise or settle any such action, suit, proceeding, claim, liability or (iii) assessment without the consent of the Indemnifying Party has or Indemnified Party, as the case may be, which consent shall not authorized the employment of counsel for the Indemnified Party at the expense be unreasonably withheld or delayed, if such compromise or settlement does not result in a release of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed as the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damagescase may be, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of form such action, suit, proceeding, claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defenseliability or assessment. For purposes of this Section 9.4Section, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX Article 5 (a "THIRD PARTY CLAIMThird Party Claim"), the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless except to the extent the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him the Indemnifying Party from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their the Indemnifying Party's choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify and defend the Indemnified Party, Party and agrees in writing to the extent provided in this Agreementprovide such defense and indemnification, from and against any damages Indemnifiable Damages with respect to which such Indemnified Party is entitled to indemnification and defense under SECTION 9.2 or SECTION 9.3 Section 5.01 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently; and (d) representation of both the Indemnified Party and the Indemnifying Party by the counsel selected by the Indemnifying Party would not create an actual or potential conflict of interest between the Indemnified Party and the Indemnifying Party. In all other cases, the Indemnified Party shall be entitled to retain its own separate counsel and control the defense of the Third Party Claim, all at the sole cost and expense of the Indemnifying Party. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel counsel, at the Indemnifying Party's sole cost and expense, to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their its election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX Article 5 for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentencethis paragraph, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this SectionAgreement, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense or claim to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release release, in form and substance acceptable to the Indemnified Party, of all liability in respect of such claim, and nothing . Nothing stated in this Section herein shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all any Indemnifiable Damages pursuant to the provisions of this ARTICLE IXArticle 5. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action or claim assumed by the Indemnifying Party in accordance with the terms of this Section hereof and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4Article 5, an "INDEMNIFIED PARTYIndemnified Party" shall mean a party claiming defense or indemnification under this Agreement, Article 5 and an "INDEMNIFYING PARTYIndemnifying Party" shall mean a party from whom defense or indemnification is sought under this AgreementArticle 5. The payments required With regard to any Third Party Claims for which indemnification is payable hereunder, such indemnification shall be paid by this SECTION 9.4 will be made periodically during the course of Indemnifying Party upon the investigation or defense, as and when bills are received or expenses incurred.earliest to occur of:

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX Article V (a "THIRD PARTY CLAIMThird Party Claim"), the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless except to the extent the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him the Indemnifying Party from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their the Indemnifying Party's choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify and defend the Indemnified Party, Party and agrees in writing to the extent provided in this Agreementprovide such defense and indemnification, from and against any damages Indemnifiable Damages with respect to which such Indemnified Party is entitled to indemnification and defense under SECTION 9.2 or SECTION 9.3 Section 5.1 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently; and (d) representation of both the Indemnified Party and the Indemnifying Party by the counsel selected by the Indemnifying Party would not create an actual or potential conflict of interest between the Indemnified Party and the Indemnifying Party. In all other cases, the Indemnified Party shall be entitled to retain its own separate counsel and control the defense of the Third Party Claim, all at the sole cost and expense of the Indemnifying Party. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel counsel, at the Indemnifying Party's sole cost and expense, to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their its election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX Article V for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentencethis paragraph, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this SectionAgreement, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense or claim to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release release, in form and substance acceptable to the Indemnified Party, of all liability in respect of such claim, and nothing . Nothing stated in this Section herein shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all any Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. Article V. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action or claim assumed by the Indemnifying Party in accordance with the terms of this Section hereof and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4Article V, an "INDEMNIFIED PARTYIndemnified Party" shall mean a party claiming defense or indemnification under this Agreement, Article V and an "INDEMNIFYING PARTYIndemnifying Party" shall mean a party from whom defense or indemnification is sought under this Agreement. The payments required Article V. With regard to any Third Party Claims for which indemnification is payable hereunder, such indemnification shall be paid by this SECTION 9.4 will be made periodically during the course Indemnifying Party upon the earliest to occur of: (a) the entry of a judgment against the Indemnified Party and the expiration of any applicable appeal period, or if earlier, ten (10) days prior to the date that the judgment creditor has the right to execute the judgment; (b) the entry of a nonappealable judgment or final appellate decision against the Indemnified Party; (c) a settlement of the investigation claim; or defense(d) with respect to indemnities for tax liabilities, as and upon the issuance of any binding resolution by a taxation authority. Notwithstanding the foregoing, expenses of counsel to the Indemnified Party shall be reimbursed on a current basis by the Indemnifying Party. All indemnification claims not paid when bills are received due shall bear interest at a rate equal to the lesser of 10% per annum or expenses incurredthe highest rate permitted by law.

Third Party Actions. With respect to each claim made by If a third party commences any action or makes any demand against either party to this Agreement for which an such party ("Indemnified Party (as hereinafter definedParty") seeks is entitled to indemnification under this ARTICLE IX Agreement from the other party to this Agreement (a "THIRD PARTY CLAIMIndemnifying Party"), such Indemnified Party will promptly notify the Indemnifying Party in writing of such action or demand; provided, however, that if the Indemnified Party shall give assumes the defense of the action and fails to provide prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party ClaimParty, provided that such failure to give such notice promptly shall not relieve or limit the obligations of in any way the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure Party's obligation to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, except to the extent provided in this Agreement, from and against any damages with respect to which that such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) failure materially prejudices the Indemnifying Party conducts Party's ability to defend the defense of the claim actively and diligentlyaction. If there is a conflict of interest, however, that would prevent counsel for the The Indemnifying Party from also representing the Indemnified Party as reasonably determined by may, at its own expense and without limiting its obligation to indemnify the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the defense of such action on behalf of with counsel reasonably satisfactory to the Indemnified Party. After notice The Indemnifying Party may also, at its own expense, assume the total defense of such action from the Indemnified Party with counsel reasonably acceptable to the Indemnified Party; provided, the Indemnifying Party to provides in writing that it will indemnify the Indemnified Party of their election to so assume and waive all objections thereto. In any event, the party that has assumed the defense thereofof such action shall provide the other party with copies of all notices, pleadings and other papers filed or served in such action. Neither party shall make any settlement or adjustment without the other party's prior written consent, which consent (i) in the case of the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent unreasonably withheld if the settlement or compromise provides for any injunctive or other equitable relief against adjustment involves only the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party payment of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed money damages by the Indemnifying Party and (ii) in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course case of the investigation Indemnified Party may be withheld for any reason if the settlement or defense, as and when bills are received adjustment involves performance or expenses incurredadmission by the Indemnified Party.

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM"), the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.Indemnified

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE Article IX (a "THIRD PARTY CLAIMThird Party Claim"), the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION Section 9.2 or SECTION Section 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGESIndemnifiable Damages") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE Article IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.37

Third Party Actions. With respect to each claim made by In the event Purchaser becomes aware of a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX claim (a "THIRD PARTY CLAIM")“Third Party Claim”) which Purchaser in good faith believes will result in an indemnification claim pursuant to this Article VI, Purchaser shall notify Parent and Seller of such Third Party Claim by providing a Claim Notice which will be accompanied by copies of any documentation submitted by the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the third party making such Third Party Claim, provided that if any. Parent and Seller shall be entitled on its expense, to participate in, but not to determine or conduct, the defense of such Third Party Claim. The failure to give such notice promptly so notify Parent and Seller shall not relieve or limit the obligations Parent and/or Seller of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and Liability except to the extent Parent and/or Seller (as applicable) demonstrates that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the Parent’s and/or Seller’s defense of the claim actively and diligentlysuch action is materially prejudiced thereby. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party Purchaser shall have the right in its sole discretion to select separate counsel to participate in conduct the defense of, and to settle, any Third Party Claim; provided, however, that, if Purchaser settles any such Third Party Claim without the consent of Parent and Seller (which shall not be unreasonably withheld or delayed), then Purchaser shall be entitled to seek indemnification hereunder, however such settlement shall not represent the amount of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereofLosses indemnifiable hereunder, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereofprovided further however that, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the if Xxxxxxxxx seeks prior written consent of Parent and Seller to settlement and Parent or Seller shall not have objected within 20 Business Days after such written request (or upon any such written consent by Xxxxxx), then such lack of objection (or such consent) shall represent the Indemnified Partyagreement of Parent and Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder and, any action for which they have assumed the defense to avoidance of doubt, represent the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect amount of such claim, and nothing stated in this Losses. Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.6.4

Third Party Actions. With respect to each claim made by In the event any Action is instituted against a third party for which an Parent Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX which involves or appears reasonably likely to involve an Indemnification Claim hereunder (a "THIRD PARTY CLAIM"“Third Party Claim”), Parent will, promptly after receipt of notice of any such Action, notify the Indemnified Party shall give prompt notice to Representative (and, in the event indemnification is being sought hereunder directly from an Indemnifying Party (as hereinafter definedParty, such Indemnifying Party) of the Third Party Claim, provided that commencement thereof. The failure to give so notify the Representative (and, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such notice promptly shall not relieve or limit the obligations Indemnifying Party) of the Indemnifying Party unless commencement of any such Action will relieve the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him Parties from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as in connection therewith only if and to the extent that (a) such failure materially and adversely affects the ability of the Indemnifying Party notifies Parties to defend their interests in such Action. Parent shall have the Indemnified Party right, in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Partyits sole discretion, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts control the defense or settlement of the claim actively and diligently. If there is a conflict of interestsuch Action; provided, however, that would prevent counsel for the Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate such Indemnifying Party) and its counsel to (at such party’s sole expense) may participate in (but not control the conduct of) the defense of such action on behalf Action; and provided further that, except with the consent of the Indemnified Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party), which consent shall not be unreasonably withheld, no settlement of any such Action with third party claimants shall be determinative of the amount of Damages relating to such matter. After notice from In the Indemnifying Party event that the Representative has consented to the Indemnified Party of their election to so assume the defense thereofany such settlement, the Indemnifying Party will not be liable Parties shall have no power or authority to the Indemnified Party pursuant to the provisions object under any provision of this ARTICLE IX for 8 to the related counsel and paralegal fees and expenses subsequently incurred by amount of any such Indemnification Claim against the Indemnified Party in connection with the defense thereofEscrow Fund, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) or against the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the actionParties directly, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection case may be, with any respect to such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurredsettlement.

Third Party Actions. With respect to each claim made by a third party for which (iv) In the event any Action is instituted against an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX which involves or appears reasonably likely to involve an Indemnification Claim hereunder (a "THIRD PARTY CLAIM"“Third Party Claim”), Parent will, promptly after receipt of notice of any such Action, notify the Indemnified Party shall give prompt notice to Securityholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party (as hereinafter definedParty, such Indemnifying Party) of the commencement thereof. The failure to so notify the Securityholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party) of the commencement of any such Action will not relieve the Indemnifying Parties from liability in connection therewith. Parent shall have the right, in its sole discretion, to control the defense of and to settle any such Action; provided, however, that the Securityholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party) and its counsel (at such party’s sole expense) may participate in (but not control the conduct of) the defense of such Action. However, unless the Securityholder Representative consents to the settlement of a Third Party Claim, provided that failure to give such notice promptly which consent shall not relieve be unreasonably withheld, conditioned or limit the obligations of the Indemnifying Party delayed, and which consent shall be deemed to have been given for all purposes hereunder unless the Indemnifying Party has been materially prejudiced thereby Securityholder Representative objects in writing within ten (and 10) business days after a written request from Parent for such failure to notify consent, the Indemnifying Party will not relieve it or him from any other liability he or it may have amounts paid to the Indemnified Party)third party claimant in settlement of such Third Party Claim shall not be determinative as to the amount of Losses recoverable for such settlement payment under this Article 8. The If the Securityholder Representative consents to any such settlement, neither the Securityholder Representative nor any Indemnifying Party will have any power or authority to object to the right to defend the amount or validity of any claim by or on behalf of any Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages for indemnity with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurredsettlement.

Third Party Actions. With respect In the event any claim is made, suit is brought or tax audit or other proceeding is instituted against either of the parties hereto or any of their respective directors, officers or affiliates which involves or appears reasonably likely to each involve a claim made by a third party for Damages for which an Indemnified Party indemnification may be sought against a party hereunder (as hereinafter defined) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM"the “Indemnitor”), the Indemnified Party shall give prompt party seeking indemnification (the “Indemnitee”) will, promptly (and in any event within 30 days) after receipt of notice to the Indemnifying Party (as hereinafter defined) of any such claim, suit or proceeding, notify Indemnitor of the Third Party Claim, provided that commencement thereof. The failure to give such notice promptly shall not relieve or limit the obligations so notify Indemnitor of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and commencement of any such failure to notify the Indemnifying Party claim, suit or proceeding will not relieve it or him Indemnitor from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and only to the extent that (a) such failure adversely affects the Indemnifying Party notifies the Indemnified Party ability of Indemnitor to defend its interests in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the such claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 action or SECTION 9.3 hereof proceeding. Indemnitor (collectively, "INDEMNIFIABLE DAMAGES"at its expense) that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right and shall be given the opportunity to select separate counsel to participate in assume and control the defense of such action on behalf of claim, suit or proceeding, provided that Indemnitee and its counsel (at Indemnitee’s expense) may participate in (but not control the Indemnified Party. After notice from the Indemnifying Party conduct of) all matters pertaining to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section suit or proceeding. Whether or not Indemnitor elects to assume such defense, Indemnitee shall otherwise affect not, except at its own cost, make any settlement with respect to any such claim, suit or proceeding without the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant prior consent of Indemnitor. Indemnitee’s consent to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense settlement of any action assumed such claim, suit or proceeding by the Indemnifying Party in accordance with the terms of this Section Indemnitor shall be required and shall make available not be unreasonably withheld, but such consent shall not be required if (or to the Indemnifying Party extent that) such information as settlement only requires the Indemnifying Party reasonably requests in connection with any such defense. For purposes payment of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will monetary amount for which Indemnitor has agreed to be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurredsolely responsible.

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX Article (a "THIRD PARTY CLAIMThird Party Claim"), the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (ai) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that Indemnifiable Damage the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (bii) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (ciii) the Indemnifying Party conducts the defense of the claim actively and diligently. If Subject to the foregoing limitations, with respect to any such action commenced by a third party, the Indemnifying Party shall have the right, to the extent that they may wish, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party; provided, however, if there is a conflict of interest, however, that interest which would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.the

Third Party Actions. With respect to each claim made by a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX Article VII (a "THIRD PARTY CLAIMThird Party Claim"), the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless except to the extent the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him the Indemnifying Party from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their the Indemnifying Party's choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify and defend the Indemnified Party, Party and agrees in writing to the extent provided in this Agreementprovide such defense and indemnification, from and against any damages Indemnifiable Damages with respect to which such Indemnified Party is entitled to indemnification and defense under SECTION 9.2 or SECTION 9.3 Section 6.1 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently; and (d) representation of both the Indemnified Party and the Indemnifying Party by the counsel selected by the Indemnifying Party would not create an actual or potential conflict of interest between the Indemnified Party and the Indemnifying Party. In all other cases, the Indemnified Party shall be entitled to retain its own separate counsel and control the defense of the Third Party Claim, all at the sole cost and expense of the Indemnifying Party. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel counsel, at the Indemnifying Party's sole cost and expense, to participate in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their its election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX Article VII for the related counsel and paralegal legal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentencethis paragraph, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this SectionAgreement, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense or claim to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release release, in form and substance acceptable to the Indemnified Party, of all liability in respect of such claim, and nothing . Nothing stated in this Section herein shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all any Indemnifiable Damages pursuant to the provisions of this ARTICLE IXArticle VII. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action or claim assumed by the Indemnifying Party in accordance with the terms of this Section hereof and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4Article VI, an "INDEMNIFIED PARTYIndemnified Party" shall mean a party claiming defense or indemnification under this Agreement, Article VII and an "INDEMNIFYING PARTYIndemnifying Party" shall mean a party from whom defense or indemnification is sought under this AgreementArticle VII. The payments required With regard to any Third Party Claims for which indemnification is payable hereunder, such indemnification shall be paid by this SECTION 9.4 will be made periodically during the course Indemnifying Party upon the earliest to occur of: (a) the entry of a judgment against the Indemnified Party and the expiration of any applicable appeal period, or if earlier, ten (10) days prior to the date that the judgment creditor has the right to execute the judgment; (b) the entry of a nonappealable judgment or final appellate decision against the Indemnified Party; (c) a settlement of the investigation claim; or defense(d) with respect to indemnities for tax liabilities, as and upon the issuance of any binding resolution by a taxation authority. Notwithstanding the foregoing, expenses of counsel to the Indemnified Party shall be reimbursed on a solicitor-client basis by the Indemnifying Party. All indemnification claims not paid when bills are received due shall bear interest at a rate equal to the lesser of 10% per annum or expenses incurredthe highest rate permitted by law.

Third Party Actions. With respect In the event any claim is made, suit is brought or tax audit or other proceeding is instituted against Purchaser, Seller or the Company which involves or appears reasonably likely to each claim made by involve a third Loss, the indemnified party will, promptly after receipt of notice of any such claim, suit or proceedings for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM")may be sought, notify, which notice will describe such claim, suit or proceeding in reasonable detail, the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) indemnifying party of the Third Party Claim, provided that commencement thereof. The failure to give such notice promptly shall not relieve or limit so notify the obligations indemnifying party of the Indemnifying Party unless commencement of any such claim, suit or proceeding will relieve the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him indemnifying party from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and under Article VII hereof only to the extent that such failure materially adversely affects the ability of the indemnifying party to defend its interests in such claim, action or proceedings. The indemnifying party (aat its expense) shall have the Indemnifying Party notifies right and shall be given the Indemnified Party in writingopportunity to defend with its own counsel such claim, suit or proceedings. If the indemnifying party does not elect to undertake the defense of any such claim, suit or proceeding, within fifteen (15) days a reasonable period after receipt from the Indemnified Party of notice of the claimsame, that the Indemnifying Party will indemnify the Indemnified Party, indemnified party (upon further notice to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES"indemnifying party) that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate undertake the defense of such claim, suit or proceedings, subject to the right of the indemnifying party to assume the defense of such claim, suit or proceeding at any time prior to its final determination or settlement. If the indemnifying party shall undertake such defense, the indemnified party shall cooperate fully with the indemnifying party and its counsel with respect thereto. The indemnified party shall, at its own expense, have the right to participate in the defense of such action on behalf claim, suit or proceeding. The indemnified party shall not, except at its own cost, make any settlement with respect to any such claim, suit or proceeding without the prior consent of the Indemnified Partyindemnifying party. After notice from In the Indemnifying Party event that the indemnified party determines to settle any such claim, suit or proceeding without such prior consent of the Indemnified Party of their election to so assume the defense thereofindemnifying party, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party indemnifying party shall have no right further indemnification obligations under this Article VII with respect to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation suit or defense, as and when bills are received or expenses incurredproceeding.

Third Party Actions. With respect to each claim made by a If any third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM")should institute or assert any claim, the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give such notice promptly shall not relieve action or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party proceeding against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages party hereto with respect to which such Indemnified Party is entitled party determines it may seek to indemnification under SECTION 9.2 be indemnified, held harmless and/or defended, pursuant to the assumption or SECTION 9.3 hereof exclusion of liabilities set forth in Sections 3.03 and 3.04 hereof, the party hereto against whom such claim, action or proceeding has been instituted or asserted (collectively, the "INDEMNIFIABLE DAMAGESindemnified party") that shall promptly notify each party hereto by whom it may seek to be indemnified, held harmless and/or defended (an "indemnifying party") of the Indemnified Party may suffer resulting frominstitution or assertion of such claim, arising out ofaction or proceeding, relating toand, in the nature ofif so requested by an indemnifying party, or caused by the shall promptly furnish such indemnifying party with a copy of any written claim; (b) the claim seeks the recovery , complaint, notice of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights violation or other equitable relief; similar document the indemnified party may have received from the third party instituting or asserting such claim, action or proceeding. An indemnified party shall have the right (but not the obligation) (i) to direct and (c) the Indemnifying Party conducts control, through legal counsel of its own choosing, the defense of the claim actively any third party claim, action or proceeding and diligently. If there is a conflict of interest(ii) to compromise and settle any third party claim, action or proceeding on any basis and in any manner such indemnified party deems necessary or appropriate; provided, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party (a) each indemnifying party shall have the right to select separate participate, at its own cost and expense, through legal counsel of its own choosing, subject to participate in the defense of such action on behalf control of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereofindemnified party and its legal counsel, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any third-party claim, action assumed or proceeding with respect to which indemnity is sought hereunder, (b) prior to compromising or settling any third-party claim, action or proceeding with respect to which indemnity is sought hereunder, the indemnified party shall notify such indemnifying party of the proposed terms and conditions of the compromise or settlement and (c) in the case of any third-party claim, action or proceeding with respect to which indemnity is sought hereunder that involves only the payment of money damages by the Indemnifying Party in accordance indemnified party, such indemnifying party may assume (jointly with the terms any and all other indemnifying parties), at its own cost and expense, through legal counsel of this Section and shall make available its own choosing reasonably acceptable to the Indemnifying Party indemnified party, the direction and control of the defense of such information as third-party claim if, but only if (i) such indemnifying party acknowledges that it is obligated to indemnify and hold harmless the Indemnifying Party reasonably requests indemnified party with respect to all judgments, settlements, compromises and other losses, damages, costs and expenses in connection with any such defensethird-party claim, action or proceeding and (2) such third-party claim, action or proceeding continues to involve only the payment of money damages by the indemnified party. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred9.03.

Third Party Actions. With respect (a) In the event any claim is made, suit is brought or tax audit or other proceeding is instituted against Nortek or any Gruppo BEST Company or any of their respective directors, officers or affiliates which involves or appears reasonably likely to each claim made by involve a third party Nortek Claim for which an Indemnified Party indemnification may be sought against the Sellers hereunder, Nortek will, promptly (as hereinafter definedand in any event within 15 days) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM")after receipt of notice of any such claim, suit, tax audit or proceeding, notify the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) Sellers of the Third Party Claim, provided that commencement thereof. The failure to give such notice promptly shall not relieve or limit the obligations so notify Sellers of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and commencement of any such failure to notify the Indemnifying Party claim, suit, tax audit or proceeding will not relieve it or him Sellers from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and only to the extent that (a) such failure materially adversely affects the Indemnifying Party notifies the Indemnified Party ability of Sellers to defend its interests in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the such claim, that suit, tax audit or proceeding. Whenever permitted under applicable law, Nortek or any Gruppo BEST Company or any of their respective directors, officers or affiliates, as the Indemnifying Party will indemnify the Indemnified Partycase may be, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right and option to select separate counsel bring Sellers as a formal party into the proceedings, and the Sellers shall have the right and option to join in such proceedings as a formal party in accordance with applicable procedural rules. In all cases in which Sellers do not participate in the proceedings as a formal party, Sellers (at their expense) shall have the right and shall be given the opportunity to participate in the defense of such action on behalf claim, suit, tax audit or proceeding, provided that Nortek and its counsel shall maintain the conduct of all matters pertaining to the defense or settlement of such claim, suit, tax audit or proceeding. Whether or not Sellers elect to participate in such defense, Nortek shall not, except at its own cost, make any settlement with respect to any such claim, suit, tax audit or proceeding without the prior consent of Sellers, which may not be unreasonably withheld. In the event that Nortek determines to settle any such claim, suit, tax audit or proceeding without the prior consent of Sellers (as provided above), Sellers shall have no indemnification obligations with respect to such claim, suit, tax audit or proceeding. Nortek's consent to the settlement of any such claim, suit, tax audit or proceeding by Sellers shall be required and shall not be unreasonably withheld. (b) In the event any claim is made, suit is brought or tax audit or other proceeding is instituted against Sellers which involves or appears reasonably likely to involve a Seller Claim for which indemnification may be sought against Nortek hereunder, the Sellers will, promptly (and in any event within 15 days) after receipt of notice of any such claim, suit, tax audit or proceeding, notify Nortek of the Indemnified Partycommencement thereof. After notice from the Indemnifying Party to the Indemnified Party of their election The failure to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice notify Nortek of the commencement of the actionany such claim, suit, tax audit or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense proceeding will relieve Nortek from liability only to the extent that such failure materially adversely affects the settlement ability of Nortek to defend its interest in such claim, suit, tax audit or compromise provides for proceeding. Whenever permitted under applicable law, Nortek or any injunctive Gruppo BEST Company or other equitable relief against any of their respective directors, officers or affiliates, as the Indemnified Party other than monetary damagescase may be, or shall have the right and option to bring Nortek as a formal party into the proceedings, and Nortek shall have the right and option to join in such proceedings as a formal party in accordance with applicable procedural rules. In all cases in which Nortek does not include participate in the proceedings as an unconditional term thereof a formal party, Nortek (at its expense) shall have the providing right and shall be given the opportunity to participate in the Indemnified Party by the third party of a release of all liability in respect defense of such claim, suit, tax audit or proceeding, provided that Sellers and nothing stated in this Section their counsel shall otherwise affect maintain the Indemnifying Party's obligation to pay the Indemnified Party conduct of all Indemnifiable Damages pursuant matters pertaining to the provisions defense or settlement of this ARTICLE IXsuch claim, suit, tax audit or proceeding. The Indemnified Party Whether or not Nortek elects to participate in such defense, Sellers shall reasonably cooperate not, except at its own cost, make any settlement with respect to any such claim, suit, tax audit or proceeding without the Indemnifying Party in prior consent of Nortek, which may not be unreasonably withheld. In the defense event that Sellers determines to settle any such claim, suit, tax audit or proceeding without the prior consent of Nortek (as provided above), Nortek shall have no indemnification obligations with respect to such claim, suit, tax audit or proceeding. Seller's consent to the settlement of any action assumed such claim, suit, tax audit or proceeding by the Indemnifying Party in accordance with the terms of this Section Nortek shall be required and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defensenot be unreasonably withheld. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.8.5

Third Party Actions. With respect to each claim made by In the event any Action is instituted against a third party for which an Parent Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX which involves or appears reasonably likely to involve an Indemnification Claim hereunder (a "THIRD PARTY CLAIM"“Third Party Claim”), Parent will, promptly after receipt of notice of any such Action, notify the Indemnified Party shall give prompt notice to Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party (as hereinafter definedParty, such Indemnifying Party) of the Third Party Claim, provided that commencement thereof. The failure to give so notify the Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such notice promptly shall not relieve or limit the obligations Indemnifying Party) of the Indemnifying Party unless commencement of any such Action will relieve the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him Parties from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as in connection therewith only if and to the extent that (a) such failure materially and adversely affects the ability of the Indemnifying Party notifies Parties to defend their interests in such Action. Parent shall have the Indemnified Party right, in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Partyits sole discretion, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts control the defense or settlement of the claim actively and diligently. If there is a conflict of interestsuch Action; provided, however, that would prevent counsel for the Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the right to select separate such Indemnifying Party) and its counsel to (at such party’s sole expense) may participate in (but not control the conduct of) the defense of such action on behalf Action; and provided further that, except with the consent of the Indemnified Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party), no settlement of any such Action with third party claimants shall be determinative of the amount of Damages relating to such matter. After notice from In the Indemnifying Party event that the Representative has consented to the Indemnified Party of their election to so assume the defense thereofany such settlement, the Indemnifying Party will not be liable Parties shall have no power or authority to the Indemnified Party pursuant to the provisions object under any provision of this ARTICLE IX for 8 to the related counsel and paralegal fees and expenses subsequently incurred by amount of any such Indemnification Claim against the Indemnified Party in connection with the defense thereofEscrow Fund, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) or against the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the actionParties directly, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection case may be, with any respect to such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurredsettlement.

Third Party Actions. With respect For purposes of this Agreement, the “applicable indemnifying Persons” shall, as appropriate, refer to each claim made the Escrow Account, acting by and through the Representative, the Subject Parties of Interest, acting by and through the Representatives, or the applicable Company Shareholder, acting individually and on such Person’s own behalf. In the event any Action (other than a third party Tax Proceeding) is instituted against a Parent Indemnified Party which involves or appears reasonably likely to involve a Parent Claim for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX may be sought (a "THIRD PARTY CLAIM"“Third Party Claim”), Parent will, promptly after receipt of notice of any such Action, notify the Indemnified Party shall give prompt notice Representative or the applicable Company Shareholder, as the case may be, of the commencement thereof. The failure to so notify the Representative or applicable Company Shareholder, as the case may be, of the commencement of any such Action or the failure to so notify in a timely manner will not relieve the applicable indemnifying Persons from liability in connection therewith, except to the Indemnifying Party (as hereinafter defined) extent such applicable indemnifying Persons shall have been prejudiced by such failure. In the event of the any Third Party Claim, provided that failure to give such notice promptly the applicable indemnifying Persons (at their expense) shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right and shall be given the opportunity to defend assume and control the Indemnified Party against any Third Party Claim defense of such Action with counsel of their choice reasonably satisfactory to the 36 42 applicable Parent Indemnified Party; provided that such Parent Indemnified Party so long as and its counsel (at such Parent Indemnified Party’s expense) may participate in (but not control the conduct of) all matters pertaining to the defense or settlement of such Action; provided, further that the applicable indemnifying Persons shall pay the reasonable fees and expenses of such separate counsel retained by the Parent Indemnified Party if such Parent Indemnified Party has been advised by counsel that representation of both the Parent Indemnified Party and such indemnifying Persons by the same counsel would create a conflict of interest in the defense of such claim; and provided, further that the applicable indemnifying Persons shall not have such right or opportunity to assume and control the defense of any such Action and shall pay the reasonable fees and expenses of counsel retained by the Parent Indemnified Party in the event and to the extent that (aw) the Indemnifying Party notifies the Indemnified Party such Action relates to, or arises in writingconnection with, within fifteen any criminal proceeding, action, indictment, allegation or investigation or any regulatory enforcement action, (15x) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating toAction, in the nature ofreasonable good faith judgment of Parent, alleges Damages in excess of the applicable aggregate amounts, if any, payable pursuant to Section 12.1(b), Section 12.2(b) or caused Section 12.3(c), in each case, after deducting the full amount of all pending claims for Damages, and counsel retained by the claim; Parent Indemnified Parties is conducting the defense of such Action actively and diligently, (by) the claim such Action seeks the recovery of solely money damages and does not contain a claim for as its primary relief an injunction, specific performance, a declaration of rights injunction or other equitable relief; and relief against the Parent Indemnified Party or (cz) the Indemnifying Party conducts applicable indemnifying Persons fail to conduct the defense of the claim such Action actively and diligently. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party shall have the The applicable indemnifying Persons’ right to select separate counsel assume and control such defense shall be exercisable by written notice from the Representative or the applicable Company Shareholder, as the case may be, to participate in the defense Parent within 10 calendar days following such Person’s receipt of notice of such action on behalf of the Action from such Parent Indemnified Party. After notice from In the Indemnifying Party event that an applicable indemnifying Person shall elect to the Indemnified Party assume control of their election to so assume the defense thereofsuch defense, the Indemnifying Party will not be liable to the Parent Indemnified Party Parties shall, without forfeiting any rights pursuant to this Agreement, cooperate with such applicable indemnifying Person in resolving such Third Party Claim. Whether or not the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection applicable indemnifying Persons so elect to assume such defense, Parent shall not, except at its own cost, make any settlement with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory respect to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, any such Action without the prior written consent of the Representative or the applicable Company Shareholder, as the case may be, which such consent, in each case, shall not be unreasonably withheld or delayed. The Parent Indemnified Party’s consent to the settlement of any Third Party Claim shall be required and shall not be unreasonably withheld or delayed, any action for which they have assumed the defense but such consent shall not be required if (or to the extent that) such settlement only requires the settlement payment by the applicable indemnifying Persons of a monetary amount not in excess of the applicable aggregate amounts, if any, payable pursuant to Section 12.1(b), Section 12.2(b) or compromise provides for Section 12.3(b) and includes a full and unconditional release of any injunctive or other equitable relief and all claims against the such Parent Indemnified Party other than monetary damages, or and does not include a statement as an unconditional term thereof the providing to the Indemnified Party or admission of fault, culpability or failure to act by the third party of a release of all liability in respect or on behalf of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Parent Indemnified Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred.

Third Party Actions. With respect to each claim made by a third party Except for which Tax matters addressed in Section 5.5, in the event any Action is instituted against an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX which involves or appears reasonably likely to involve an Indemnification Claim hereunder (a "THIRD PARTY CLAIM"“Third Party Claim”), the Indemnified Party shall give prompt will, promptly after receipt of notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claim, provided that failure to give any such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby Action (and in no event later than 5 business days after receipt of such failure to notice), notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to of the Indemnified Party)commencement thereof. The failure to so notify the Indemnifying Party of the commencement of any such Action will have relieve the right to defend the Indemnified Indemnifying Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as from liability in connection therewith only if and to the extent that (a) such failure materially and adversely affects the ability of the Indemnifying Party notifies the Indemnified Party to defend its interests in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the such Action. The Indemnifying Party will indemnify shall have the Indemnified Partyright, in its sole discretion, to control the extent provided in this Agreementdefense or settlement of such Action; provided, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectivelyhowever, "INDEMNIFIABLE DAMAGES") that the Indemnified Party and its counsel (at such party’s sole expense) may suffer resulting from, arising out participate in (but not control the conduct of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively such Action; and diligently. If there is a conflict of interestprovided further that, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then (i) unless the Indemnified Party shall have the right to select separate counsel to participate in the defense provided its consent thereto (which consent shall not be unreasonably withheld, conditioned or delayed), any settlement of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred Action by the Indemnified Party in connection with the defense thereof, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice include an absolute, unconditional and irrevocable release in favor of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of claimants in the Action from and against all liability in respect of such claimclaims, obligations and liabilities relating to the Action, and nothing stated in this Section shall otherwise affect (ii) except with the consent of the Indemnified Party and the Indemnifying Party's obligation , which consent shall not be unreasonably withheld, conditioned or delayed, no settlement of any such Action with third party claimants shall be determinative of the amount of Damages (if any) relating to pay such matter. In the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with event that the Indemnifying Party in the defense of has consented to any action assumed by such settlement, the Indemnifying Party in accordance with the terms shall have no power or authority to object under any provision of this Section and shall make available Article 7 to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course amount of the investigation or defenseIndemnification Claim, as and when bills are received or expenses incurredwith respect to such settlement.

Third Party Actions. With respect to each claim made by In the event Purchaser becomes aware of a third party for which an Indemnified Party (as hereinafter defined) seeks indemnification under this ARTICLE IX claim (a "THIRD PARTY CLAIM")“Third Party Claim”) which Purchaser in good faith believes will result in an indemnification claim pursuant to this Article VI, Purchaser shall notify Parent and Seller of such Third Party Claim by providing a Claim Notice which will be accompanied by copies of any documentation submitted by the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the third party making such Third Party Claim, provided that if any. Parent and Seller shall be entitled on its expense, to participate in, but not to determine or conduct, the defense of such Third Party Claim. The failure to give such notice promptly so notify Parent and Seller shall not relieve or limit the obligations Parent and/or Seller of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and Liability except to the extent Parent and/or Seller (as applicable) demonstrates that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the claim, that the Indemnifying Party will indemnify the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the Parent’s and/or Seller’s defense of the claim actively and diligentlysuch action is materially prejudiced thereby. If there is a conflict of interest, however, that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party Purchaser shall have the right in its sole discretion to select separate counsel to participate in conduct the defense of, and to settle, any Third Party Claim; provided, however, that, if Purchaser settles any such Third Party Claim without the consent of Parent and Seller (which shall not be unreasonably withheld or delayed), then Purchaser shall be entitled to seek indemnification hereunder, however such settlement shall not represent the amount of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereofLosses indemnifiable hereunder, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereofprovided further however that, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything to the contrary in this Section, the Indemnifying Party shall have no right to settle or compromise, without the if Xxxxxxxxx seeks prior written consent of Parent and Seller to settlement and Parent or Seller shall not have objected within 20 Business Days after such written request (or upon any such written consent by Xxxxxx), then such lack of objection (or such consent) shall represent the Indemnified Partyagreement of Parent and Seller that the Losses incurred in connection therewith shall be indemnifiable hereunder and, any action for which they have assumed the defense to avoidance of doubt, represent the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect amount of such claim, and nothing stated in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant to the provisions of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any action assumed by the Indemnifying Party in accordance with the terms of this Section and shall make available to the Indemnifying Party such information as the Indemnifying Party reasonably requests in connection with any such defense. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurredLosses.

Third Party Actions. With respect If any claim is made, suit is brought or tax audit or other proceeding instituted against an indemnified party that involves or appears reasonably likely to each claim made by a third party for which an Indemnified Party (involve either Pittencrieff Losses or Seller Losses, as hereinafter defined) seeks indemnification under this ARTICLE IX (a "THIRD PARTY CLAIM")the case may be, the Indemnified Party shall give prompt notice to the Indemnifying Party (as hereinafter defined) of the Third Party Claimindemnified party will, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Indemnifying Party unless the Indemnifying Party has been materially prejudiced thereby (and such failure to notify the Indemnifying Party will not relieve it or him from any other liability he or it may have to the Indemnified Party). The Indemnifying Party will have the right to defend the Indemnified Party against any Third Party Claim with counsel of their choice reasonably satisfactory to the 36 42 Indemnified Party so long as and to the extent that (a) the Indemnifying Party notifies the Indemnified Party in writing, within fifteen (15) days after receipt from the Indemnified Party of notice of the any such claim, suit or proceeding for which indemnification may be sought, notify the indemnifying party of the commencement thereof. The indemnified party (at its expense, unless a conflict exists such that the Indemnifying Party will indemnify parties cannot be represented by the Indemnified Party, to the extent provided in this Agreement, from and against any damages with respect to which such Indemnified Party is entitled to indemnification under SECTION 9.2 or SECTION 9.3 hereof (collectively, "INDEMNIFIABLE DAMAGES") that the Indemnified Party may suffer resulting from, arising out of, relating tosame counsel, in which event the nature of, or caused by the claim; (b) the claim seeks the recovery of solely money damages and does not contain a claim indemnifying party shall pay for an injunction, specific performance, a declaration of rights or other equitable relief; and (c) the Indemnifying Party conducts the defense of the claim actively and diligently. If there is a conflict of interest, however, that would prevent one counsel for the Indemnifying Party from also representing the Indemnified Party as reasonably determined by the Indemnified Party, then the Indemnified Party indemnified party) shall have the right and shall be given the opportunity to select separate counsel to participate associate with the indemnifying party in the defense of such action on behalf of the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of their election to so assume the defense thereofclaim, the Indemnifying Party will not be liable to the Indemnified Party pursuant to the provisions of this ARTICLE IX for the related counsel and paralegal fees and expenses subsequently incurred by the Indemnified Party in connection with the defense thereofsuit or proceeding, unless (i) the Indemnified Party shall have employed counsel in accordance with the provisions of the preceding sentence, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the commencement of the action, or (iii) the Indemnifying Party has not authorized the employment of provided that counsel for the Indemnified Party at the expense of the Indemnifying Party. Notwithstanding anything indemnifying party shall act as lead counsel in all matters pertaining to the contrary in this Section, the Indemnifying Party shall have no right to settle defense or compromise, without the prior written consent of the Indemnified Party, any action for which they have assumed the defense to the extent the settlement or compromise provides for any injunctive or other equitable relief against the Indemnified Party other than monetary damages, or does not include as an unconditional term thereof the providing to the Indemnified Party by the third party of a release of all liability in respect of such claim, suit or proceeding, and nothing stated the indemnifying party shall have control of such claim, suit or proceeding, including the right to settle such claim, suit or proceeding without the consent of the indemnified party. An indemnified party shall not, except at its own cost, make any settlement with respect to any such claim, suit or proceeding without the prior consent of the indemnifying party, which consent shall not be unreasonably withheld. If an indemnified party determines to settle any such claim, suit or proceeding without the prior consent of the indemnifying party, the indemnifying party shall have no further indemnification obligations under this Section 13 with respect to such claim, suit or proceeding. Notwithstanding anything in this Section shall otherwise affect the Indemnifying Party's obligation to pay the Indemnified Party all Indemnifiable Damages pursuant 13.7 to the provisions contrary, if the indemnifying party, by the fifteenth day after its receipt of this ARTICLE IX. The Indemnified Party shall reasonably cooperate with notice of any such claim, suit or proceeding (or, if earlier, by the Indemnifying Party fifth day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not notify the indemnified party that it has undertaken to defend against such claim, the party to be indemnified will have the right, but not the obligation, to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the indemnifying party's expense, subject to the right of the indemnifying party to assume the defense of such claims at any action assumed by time prior to settlement, compromise or final determination thereof. In such event, the Indemnifying Party in accordance with indemnified party will notify the terms indemnifying party of this Section and shall make available to the Indemnifying Party any proposed settlement no later than three days before such information as the Indemnifying Party reasonably requests in connection with any such defensesettlement is effected. For purposes of this Section 9.4, an "INDEMNIFIED PARTY" shall mean a party claiming indemnification under this Agreement, and an "INDEMNIFYING PARTY" shall mean a party from whom indemnification is sought under this Agreement. The payments required by this SECTION 9.4 will be made periodically during the course of the investigation or defense, as and when bills are received or expenses incurred14.