Common use of Assumption of Defense Clause in Contracts

Assumption of Defense. (i) If an Indemnified Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If an a party entitled to indemnification hereunder (the “Indemnified Party Party”) notifies Tenant the party liable for such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in this Paragraph 11 appliesSection 13.4(a) applies (a “Potential Claim”), Tenant Indemnifying Party shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory and shall be entitled, at Indemnifying Party’s sole discretion, to the Indemnified Partysettle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant Indemnifying Party and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to TenantIndemnifying Party, then the Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counselbehalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 Section 13.4 applies, and Tenant Indemnifying Party fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) as soon as reasonably practical the defense of the Indemnified Party, then the Indemnified Party may contest (or settleor, with the prior written consent of TenantIndemnifying Party, which consent will not be unreasonably withheldsettle) the claim, demand, action, proceeding, investigation or allegation at Tenant's Indemnifying Party’s expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations reasonably acceptable to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Indemnifying Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. If a Third Party Claim is made against an Indemnitee, the Indemnitor will be entitled, within one hundred twenty (i120) If an Indemnified Party notifies Tenant days after receipt of written notice from the Indemnitee of the commencement or assertion of any claimsuch Third Party Claim, demand, action, administrative or legal proceeding, investigation or allegation as to which assume the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf defense thereof (at the expense of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto Indemnitor) with counsel selected by Tenant but the Indemnitor and reasonably satisfactory to the Indemnified PartyIndemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that if in the Indemnified Party opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to employ separate counsel (which shall be represented reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the reasonable fees and expenses of such separate counsel shall be paid by advisory counsel of its own selection and at its own expensesuch Indemnitor; and provided further, that if the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any such claimThird Party Claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party Indemnitee shall have the right to select separate counsel to participate in the investigation defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and response documents relating to or in connection with such claimThird Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred as may be reasonably requested by the Indemnified Indemnitee (including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party because Claim, all Indemnitees shall reasonably cooperate with the Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the selection of such separate counsel. (ii) Indemnitor). If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails Indemnitor does not elect to assume promptly (and in any event within fifteen (15) days after being notified control of the claimdefense of any Third Party Claim, demandwithin the one hundred twenty (120) day period set forth above, actionor if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, proceedingthe Indemnitee shall have the right, investigation or allegationat the expense of the Indemnitor, after three (3) Business Days notice to the Indemnitor of its intent to do so, to undertake the defense of the Indemnified Party, then Third Party Claim for the Indemnified Party may contest account of the Indemnitor (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; providedIndemnitee), that if any and to compromise or settle such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereofThird Party Claim, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableexercising reasonable business judgment.

Assumption of Defense. Upon assumption of the defense of a Claim by the Indemnifying Party: (ia) If an the Indemnifying Party will have the right to and will assume sole control and responsibility for dealing with the Claim; (b) the Indemnifying Party may, at its own cost, appoint as counsel in connection with conducting the defense and handling of such Claim any law firm or counsel reasonably selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; (c) the Indemnifying Party will keep the Indemnified Party notifies Tenant informed of any the status of such Claim; (d) the Indemnifying Party will be responsible for all amounts payable in settlement of such claim, demandupon judgment by a court or by determination of an arbitrator or mediator or otherwise; and (e) the Indemnifying Party will have the right to settle the Claim on any terms the Indemnifying Party chooses; provided, actionhowever, administrative or legal proceedingthat it will not, investigation or allegation as to which without the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf prior written consent of the Indemnified Party and conduct with due diligence and in good faith (not to be unreasonably delayed), agree to a settlement of any Claim which (i) could impair a Party’s ability, right or obligation to perform its obligations under this Agreement or to Practice the investigation and defense thereof and Assigned Patent Rights or the response thereto with counsel selected by Tenant but reasonably satisfactory License Back as provided herein; (ii) could lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; or (iii) admits any wrongdoing or responsibility for the Claim on behalf of the Indemnified Party; provided, however, that for the avoidance of doubt, settlements involving only the payment of money by the Indemnifying Party will not constitute settlements that invoke clauses (i) through (iii). The Indemnified Party shall have will cooperate with the right Indemnifying Party and will be entitled to be represented by advisory counsel participate in, but not control, the defense of such Claim with its own selection counsel and at its own expense; and provided further. In particular, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party (at the sole cost and expense of the Indemnified Party shall have been advised in writing by counsel that there Indemnifying Party) will furnish such records, information and testimony, provide witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be legal defenses available to it which are inconsistent with those available to Tenant, then reasonably requested in connection therewith. Such cooperation will include reasonable access during normal business hours by the Indemnified Indemnifying Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalfto, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred reasonable retention by the Indemnified Party because of the selection of of, records and information that are reasonably relevant to such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 appliesClaim, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to making the Indemnified Party, the settlement Indemnitees and its and their employees and agents available on a mutually convenient basis (at the sole cost and expense of the Indemnifying Party) to provide additional information and explanation of any records or payment in full is clearly advisableinformation provided.

Assumption of Defense. An Indemnified Party (or in the case of a Stockholder Indemnified Party, the Stockholder Representative) shall promptly give notice to each Indemnifying Party after obtaining knowledge of any matter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall provide such notice no later than forty-five (45) days after the Indemnifying Party first receives notice of such claim and shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article IX, except, and only, to the extent such Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an Indemnifying Party may not assume the defense of any such third-party claim if (i) If an Indemnified Party notifies Tenant the claim could reasonably result in imprisonment of any claim, demand, action, administrative or legal proceeding, investigation imposition of a civil or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf of criminal fine against the Indemnified Party and conduct with due diligence and or its representatives, (ii) the claim could reasonably result in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory to an equitable remedy that would impair the Indemnified Party; provided’s ability to exercise its rights under this Agreement, that or impair Parent’s right or ability to operate or control any Target Entity or any Target Entity Operation, (iii) the claim names both the Indemnifying Party and the Indemnified Party shall have (including impleaded parties) and representation of both such Parties by the right same counsel would create a conflict, (iv) the aggregate amount of all Losses with respect to be represented by advisory counsel of its own selection such claim or demand exceeds the remaining Indemnification Escrow Amount and at its own expense; and provided further, that if any Identified Matters Escrow Amount available to provide indemnification for such claim, claim or demand, action, proceeding, investigation or allegation involves both Tenant (v) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party and the Indemnified Party is reasonably likely to be prejudiced by such conflict of interest. If an Indemnifying Party assumes the defense of such third party claim, such Indemnifying Party shall agree prior thereto, in writing, that it is liable under this Article IX to indemnify the Indemnified Party in accordance with the terms contained herein in respect of such claim (subject to the limitations and other terms and conditions set forth in Article IX), shall conduct such defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the Indemnified Party and shall, subject to the provisions of this Section 9.7, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that the Indemnifying Party shall not without the written consent (which consent shall not be unreasonably withheld, conditioned or delayed) of the Indemnified Party (or in the case of a Stockholder Indemnified Party, the Stockholder Representative) consent to the entry of any judgment or enter into any settlement with respect to the matter which (x) does not include a provision whereby the plaintiff or the claimant in the matter releases the Indemnified Party from all liability with respect thereto and (y) in the case of Parent, does not include any provision that would impose any obligation (including an obligation to refrain from taking action) upon the Centerre Companies. The Indemnified Party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an Indemnifying Party to notify the Indemnified Party (or in the case of a Stockholder Indemnified Party, the Stockholder Representative) of its election to defend any such claim or proceeding by a third party within thirty (30) days after notice thereof shall have been advised given to such Indemnifying Party by the Indemnified Party (or in writing the case of a Stockholder Indemnified Party, the Stockholder Representative), shall be deemed a waiver by counsel that there may be legal defenses available such Indemnifying Party of its right to it which are inconsistent with those available defend such claim or action; provided that, if a shorter time is necessary to Tenanttimely respond to a court filing, then the Indemnified Party shall have the right be entitled to select separate employ legal counsel to participate in the investigation and defense of and response respond to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred filing until receipt by the Indemnified Indemnifying Party because of the selection a timely notice of its election to defend such separate counselclaim or proceeding. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. Any Indemnified Party hereunder will (i) If an Indemnified give prompt notice to the Indemnifying Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as claim with respect to which it seeks indemnification and (ii) permit such Indemnifying Party to assume the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf defense of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto such claim with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; provided, however, that the any Indemnified Party shall have the right to be represented by advisory employ separate counsel and to participate in the defense of its own selection and at its own expense; and provided further, that if any such claim, demandbut the fees and expenses of such counsel shall be at the expense of such person unless: (A) the Indemnifying Party has agreed, actionin writing, proceedingto pay such fees or expenses; (B) the Indemnifying Party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Indemnified Party; or (C) based upon advice of counsel to such Indemnified Party, investigation there shall be one or allegation involves both Tenant and more defenses available to such Indemnified Party that are not available to the Indemnifying Party or there shall exist conflicts of interest pursuant to applicable rules of professional conduct between such Indemnified Party and the Indemnified Indemnifying Party shall have been advised (in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenantcase, then if the Indemnified Party notifies the Indemnifying Party in writing that such Indemnified Party elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the such claim on behalf of such Indemnified Party), then in each of which events the Indemnified fees and expenses of such counsel shall be at the expense of the Indemnifying Party. The Indemnifying Party may contest will not be subject to any liability for any settlement made without its consent (or settle, with the prior written consent of Tenant, which but such consent will not be unreasonably withheld) withheld or delayed), but if settled with its written consent, or if there be a final judgment against the claim, demand, action, Indemnified party in any such action or proceeding, investigation the Indemnifying Party shall indemnify and hold harmless the Indemnified Parties from and against any loss or allegation at Tenant's expense using counsel selected liability (to the extent stated above) by reason of such settlement or judgment. No Indemnified Party will be required to consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the Indemnified Party; provided, that if any claimant or plaintiff to such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement of a release from all liability in respect to such claim or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisablelitigation.

Assumption of Defense. (i) If an Indemnified The Indemnifying Party notifies Tenant shall be entitled to participate in the defense of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which Third Party Claim that is the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf subject of a notice given by the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory Person pursuant to Section 9.2.5(a). In addition, upon written notice to the Indemnified Party; providedPerson, that the Indemnified Indemnifying Party shall have the right to be represented by advisory defend the Indemnified Person against the Third Party Claim with counsel of its own selection choice reasonably satisfactory to the Indemnified Person so long as the Indemnifying Party acknowledges its liability for such indemnification hereunder (which liability for indemnification shall thereby be conclusively established) and shall keep the Indemnified Person reasonably informed with respect to the Third Party Claim. In such event, the Indemnified Person may retain separate co-counsel at its own expensesole cost and expense and participate in the defense of the Third Party Claim (though not of record, and shall not communicate with the Person asserting the Third Party Claim, or such Person’s Representatives, without the prior written consent of the Indemnifying Party); and provided furtherprovided, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and Person shall have reasonably concluded that separate counsel is required because a conflict of interest would otherwise exist or because of the Indemnifying Party’s failure to defend for a period of sixty (60) calendar days any claim after receiving notice from the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available Person of such alleged failure to it which are inconsistent with those available to Tenantdefend, then the Indemnified Party Person shall have the right to select separate counsel of its own choosing to participate in the investigation and defense defense, settlement, adjustment or compromise of and response to such claim, demand, action, proceeding, investigation or allegation action on its own behalf, and Tenant the reasonable costs and expenses (including reasonable attorneys’ fees) of defending such Third Party Claim shall pay be included as Losses. Furthermore, notwithstanding the foregoing, if (i) a Third Party Claim seeks relief other than the payment of monetary damages, or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If a Third Party Claim is or relates directly to any claimcriminal Action, demandthen, actionin each case, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified PartyPerson alone shall be entitled to contest, then defend and settle such Third Party Claim ((i) and (ii) together, the Indemnified “Excepted Procedural Matters”). The Indemnifying Party may contest (shall not consent to the entry of any judgment or settle, enter into any compromise or settlement with respect to the Third Party Claim without the prior written consent of Tenant, which the Indemnified Person (such consent will not to be unreasonably withheld, conditioned or delayed) unless such judgment, compromise or settlement (i) provides for the claimpayment of money as sole relief for the claimant, demandand (ii) subject to the making of such payment, actionresults in the full and general release of such Indemnified Person from all liabilities arising from or relating to the Third Party Claim. For the avoidance of doubt, proceedingany amounts paid or to be paid by an Indemnifying Party in connection with the defense, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment other resolution of any claim may Third Party Claims shall be made by deemed to be Losses for purposes of the Indemnified Party without Tenant's consent monetary limitations set forth in Section 9.2.4(b) and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long asshall, in the written opinion case of reputable counsel to the Indemnified Partyany indemnification claim under Section 9.2.1, the settlement or payment be paid solely in full is clearly advisableaccordance with Section 9.2.3.

Assumption of Defense. (i) If an Indemnified Party notifies Tenant of any claimRegarding claims asserted under this Section 7.04 and involving third party claims, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf within 20 days after delivery of the Claim Notice, the Indemnifying Party may, upon written notice thereof to the Indemnified Party and conduct with due diligence and in good faith Party, assume control of the investigation and defense thereof and the response thereto of such suit or proceeding with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party shall not be entitled to control and the Indemnified Party shall be entitled to have sole control over any claim to the extent such claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or relates to Taxes reflected or to be reflected in a Tax Return of the Indemnified Party, provided that the Indemnified Party shall have provide written notice to the right to be represented by advisory counsel Indemnifying Party of its own selection and election to assume control over the defense of such claim pursuant to this Section 7.04. If the Indemnifying Party does not so assume control of such defense within said 20 day period, the Indemnified Party shall control such defense. The party not controlling such defense (the "Non-controlling Party") shall be entitled to participate therein at its own expense; and provided further, that if any the Indemnifying Party assumes control of such claim, demand, action, proceeding, investigation or allegation involves both Tenant defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal conflicting interests or different defenses available with respect to it which are inconsistent with those available to Tenantsuch suit or proceeding, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the investigation and defense of such action, with the reasonable fees and response expenses of counsel to the Indemnified Party being considered "Damages" for purposes of this Agreement. Except in a case of such conflict, the party controlling such defense (the "Controlling Party") shall keep the Non-controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, actioninvoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the . The Indemnified Party for all Attorney's Fees incurred by shall not agree to any settlement of or consent to the Indemnified Party because entry of any judgment arising from any suit or proceeding without the consent of the selection Indemnifying Party which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such separate counsel. (ii) If any claim, demand, action, proceeding, investigation suit or allegation arises as to which proceeding without the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense prior written consent of the Indemnified Party, then which shall not be unreasonably withheld or delayed; provided that the consent of the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will shall not be unreasonably withheld) required if the claim, demand, action, proceeding, investigation Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or allegation at Tenant's expense using counsel selected by judgment and such settlement or judgment includes a complete release of the Indemnified Party from further liability and has no other adverse effect on the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If any action or claim shall be brought or --------------------- asserted against an Indemnified Party notifies Tenant in respect of any claimwhich indemnity may be sought from an Indemnifying Party, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf of the Indemnified Party shall promptly notify the Indemnifying Party in writing (but the omission to notify the Indemnifying Party shall not release such person from any liability which it may have to the Indemnified Party, except to the extent that such failure materially prejudices the rights of the Indemnifying Party) and conduct with due diligence and in good faith the investigation and Indemnifying Party shall assume the defense thereof and the response thereto with payment of all reasonable third party expenses arising therefrom. The legal counsel selected by Tenant but reasonably satisfactory the Indemnifying Party shall be subject to the consent of the Indemnified Party; provided, that the which consent shall not be unreasonably withheld or delayed. The Indemnified Party shall have the right to be represented by advisory employ separate counsel of its own selection and at its own expense; and provided further, that if in any such claimaction and to participate in the defense thereof, demandbut the fees and expenses of such counsel shall be at the expense of the Indemnified Party, action, proceeding, investigation unless (a) the employment thereof has been specifically authorized in writing by the Indemnifying Party; (b) the Indemnifying Party has failed to assume the defense and employ counsel; or allegation involves (c) the named parties to such action include both Tenant the Indemnifying Party and the Indemnified Party Party, and the Indemnified Party shall have been advised in writing good faith by its counsel that there the representation of the Indemnifying Party and the Indemnified Party by the same counsel may be legal defenses available inappropriate due to it actual or potential differing interests between them, in which are inconsistent with those available to Tenant, then case the fees of counsel for the Indemnified Party shall be paid by the Indemnifying Party. In such events, the Indemnifying Party shall not have the right to select assume the defense of such action on behalf of the Indemnified Party. The Indemnifying Party shall not, in connection with any one such action or separate counsel to participate but substantially similar or related actions in the investigation same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and defense expense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse more than one separate firm of attorneys at any time for the Indemnified Party for all Attorney's Fees incurred Party, which firm shall be designated by the Indemnified Party because in writing. The Indemnifying Party shall not be liable for any settlement of any such action effected without its written consent, but if any such action is settled with the selection of Indemnifying Party's written consent, or if there shall be a final judgment for the plaintiff in any such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, Indemnifying Party shall indemnify and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then hold harmless the Indemnified Party may contest (from and against any loss or settle, with the prior written consent liability by reason of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisablejudgment.

Assumption of Defense. (i) If an Indemnified The Indemnifying Party notifies Tenant of any claimshall have the right, demand, action, administrative or legal proceeding, investigation or allegation as upon written notice to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf of the Indemnified Party and conduct with due diligence and within ten (10) Business Days of receipt of a Claim Notice from the Indemnified Party in good faith respect of such Third Party Claim, to assume the investigation and defense thereof and at the response thereto expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by Tenant but reasonably the Indemnifying Party and satisfactory to the Indemnified Party; provided. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to be represented by advisory counsel defend, at the expense of its own selection and at its own expense; and provided furtherthe Indemnifying Party, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant Third Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this ‎Section 8.4(b), the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available the sole right to it which are inconsistent with those available assume the defense of and to Tenantsettle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, then the Indemnified Party shall have the right to select employ separate counsel reasonably acceptable to the Indemnifying Party and to participate in the investigation defense thereof, but the fees and defense expenses of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant counsel shall pay or reimburse be at the expense of the Indemnified Party for all Attorney's Fees incurred by unless the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party because and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the selection Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest, it being understood that the Indemnifying Party shall control such separate counsel. defense. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall reasonably cooperate with the Indemnifying Party in such defense and retain and (upon the Indemnifying Party’s request) provide to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, (i) the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent, (ii) If the Indemnifying Party shall not enter into any claimsettlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, demandcompromise or judgment (A) involves a finding or admission of wrongdoing by the Acquiror or its Affiliates (including after the Closing, action, proceeding, investigation the Company) or allegation arises as to (B) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of Indemnified Party will be indemnified hereunder. If the claim, demand, action, proceeding, investigation or allegation) Indemnified Party shall have assumed the defense of the Indemnified Partya Third Party Claim in accordance with this Agreement, then the Indemnified Party may contest (if the Indemnified Party is the Acquiror) shall not enter into any settlement or settle, compromise or consent to the entry of any judgment with respect to such Third Party Claim without the express prior written consent of Tenant, the Securityholder Representative (which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation conditioned or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisabledelayed).

Assumption of Defense. Upon assumption of the defense of a Claim by the Indemnifying Party: (ia) If an the Indemnifying Party will have the right to and will assume sole control and responsibility for dealing with the Claim; (b) the Indemnifying Party may, at its own cost, appoint as counsel in connection with conducting the defense and handling of such Claim any law firm or counsel reasonably selected by the Indemnifying Party; (c) the Indemnifying Party will keep the Indemnified Party notifies Tenant informed of the status of such Claim; and (d) the Indemnifying Party will have the right to settle the Claim on any claimterms the Indemnifying Party chooses; provided, demandhowever, actionthat it will not, administrative or legal proceeding, investigation or allegation as to which without the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf prior written consent of the Indemnified Party and conduct (not to be unreasonably withheld or delayed), agree to a settlement of any Claim which (i) could impair a Party’s ability, right or obligation to perform its obligations under this Agreement; (ii) with due diligence and in good faith respect to a Claim for which Cerulean is the investigation and defense thereof and Indemnified Party, could impair Cerulean’s ability or right to research, develop or commercialize any product using Cerulean Background Intellectual Property; (iii) could lead to liability or create any financial or other obligation on the response thereto with counsel selected by Tenant but reasonably satisfactory part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; or (iv) admits any wrongdoing or responsibility for the Claim on behalf of the Indemnified Party; provided, however, that for the avoidance of doubt, settlements involving only the payment of money by the Indemnifying Party will not constitute settlements that invoke clauses (i) through (iv). The Indemnified Party shall have will cooperate with the right Indemnifying Party and will be entitled to be represented by advisory counsel participate in, but not control, the defense of such Claim with its own selection counsel and at its own expense; and provided further. In particular, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party will furnish such records, information and the Indemnified Party shall have been advised in writing by counsel that there testimony, provide witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be legal defenses available to it which are inconsistent with those available to Tenant, then reasonably requested in connection therewith. Such cooperation will include access during normal business hours by the Indemnified Indemnifying Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalfto, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred reasonable retention by the Indemnified Party because of the selection of of, records and information that are reasonably relevant to such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 appliesClaim, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to making the Indemnified Party, the settlement Indemnitees and its and their employees and agents available on a mutually convenient basis to provide additional information and explanation of any records or payment in full is clearly advisableinformation provided.

Assumption of Defense. (i) If an Indemnified Party notifies Tenant of In the event that any claimsuch investigation, demandlitigation, action, administrative proceeding or legal proceedingclaim is brought by a third party against any Indemnified Party, investigation or allegation as to which the indemnity provided for unless, in this Paragraph 11 appliessuch Indemnified Party’s sole judgment (based on advice of counsel), Tenant shall assume on behalf a conflict of the interest between such Indemnified Party and conduct with due diligence and the relevant Indemnifying Party exists in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; providedrespect thereto, that the Indemnified such Indemnifying Party shall have the right to be represented by advisory assume the defense thereof and defend the Indemnified Party against such investigation, litigation, action, proceeding or claim with counsel reasonably satisfactory to such Indemnified Party. Upon notice from any Indemnifying Party of its own selection election to assume the defense of any such investigation, litigation, action, proceeding or claim as permitted hereby, such Indemnifying Party shall not be liable to any Indemnified Party for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof (other than the reasonable costs of assisting in the defense thereof as required by this Section). Such Indemnifying Party shall in any event keep such Indemnified Party informed of the status of such investigation, litigation, action, proceeding or claim which it is defending and permit such Indemnified Party to participate in such investigation, litigation, action, proceeding or claim (at its own expense; ), and provided furthersuch Indemnified Party shall reasonably cooperate with such Indemnifying Party in the defense of such investigation, that if any such claim, demandlitigation, action, proceedingproceeding or claim and shall give such Indemnifying Party access to relevant books and records in its possession or under its control. If the Indemnifying Party declines (or is not permitted) to exercise its right to defend under this Section 12(e), investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenantwill defend against such investigation, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demandlitigation, action, proceedingproceeding or claim in any manner consistent with its defense of similar claims and shall not consent to the entry of any dismissal or judgment, investigation or allegation on its own behalf, and Tenant shall pay enter into any settlement or reimburse compromise without the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because consent of the selection of such separate counsel. Indemnifying Party (ii) If any claim, demand, action, proceeding, investigation or allegation arises as not to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation withheld or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisabledelayed).

Assumption of Defense. (i) If an a party entitled to indemnification hereunder (the "Indemnified Party Party") notifies Tenant the party liable for such indemnification (the "Indemnifying Party") of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 appliesSection 13.4 applies (a "Potential Claim"), Tenant Indemnifying Party shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; provided, that Indemnifying Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or loss of rights to Indemnified Party, and provided further that Indemnified Party shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant Indemnifying Party and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to TenantIndemnifying Party, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorneybehalf at Indemnifying Party's Fees incurred by the Indemnified Party because of the selection of such separate counselexpense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 Section 13.4 applies, and Tenant Indemnifying Party fails to assume promptly as soon as reasonably practical (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settleor, with the prior written consent of TenantIndemnifying Party, which consent will not be unreasonably withheldsettle) the claim, demand, action, proceeding, investigation or allegation at TenantIndemnifying Party's expense using counsel selected by the Indemnified Party; provided, that if after any such failure by Tenant Indemnifying Party which continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without TenantIndemnifying Party's consent and without releasing Tenant Indemnifying Party from any obligations to the Indemnified Party under this Paragraph 11 so long asSection 13.4 if, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If an The Indemnifying Party will be entitled to participate in the defense of any Third Party Claim that is the subject of a notice given by the Indemnified Party notifies Tenant of any claimpursuant to Section 9.4.1. In addition, demand, action, administrative or legal proceeding, investigation or allegation as the Indemnifying Party will have the right to which control the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf defense of the Indemnified Party and conduct with due diligence and in good faith against the investigation and defense thereof and the response thereto Third Party Claim with counsel selected by Tenant but of its choice reasonably satisfactory to the Indemnified Party; provided, that Party so long as: (a) the Indemnifying Party gives written notice to the Indemnified Party shall within thirty (30) days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim; (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have adequate financial resources to defend against the right to be represented Third Party Claim and fulfill its indemnification obligations hereunder; (c) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party; (d) the Indemnified Party has not been advised by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and a conflict exists between the Indemnified Party and the Indemnified Indemnifying Party shall have been advised in writing by counsel that there may be legal defenses available connection with the defense of the Third Party Claim; (e) the Third Party Claim does not relate to it which are inconsistent or otherwise arise in connection with those available to TenantTaxes or any criminal or regulatory enforcement Action; (f) settlement of, then an adverse judgment with respect to, or the Indemnified Indemnifying Party’s conduct of the defense of the Third Party shall have the right to select separate counsel to participate Claim is not, in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense good faith judgment of the Indemnified Party, then likely to be materially adverse to the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business); and (g) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. The Indemnified Party may contest (or settle, with retain separate co-counsel at its sole cost and expense and participate in the prior written consent defense of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified PartyThird Party Claim; provided, however, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made the Indemnifying Party will pay the reasonable fees and expenses of separate co-counsel retained by the Indemnified Party and settlement or full payment that are incurred prior to Indemnifying Party’s assumption of any claim may be made by control of the Indemnified defense of the Third Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableClaim.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of, or criminal charges against, the indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party’s ability to exercise its rights under this Agreement, or impair Madden’s right or ability to operate any of the Companies, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If an Indemnified Party notifies Tenant indemnifying party assumes the defense of any such third party claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation as to which shall conduct such defense diligently, shall have full and complete control over the indemnity provided for in this Paragraph 11 applies, Tenant shall assume conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, subject to the provisions of this Section 12.5, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; providedindemnified party, that the Indemnified Party shall have the right such consent not to be represented by advisory counsel of its own selection and at its own expense; and provided furtherunreasonably withheld or delayed, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and indemnifying party will not without the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, the indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which consent will does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto or which may reasonably be unreasonably withheld) expected to have an adverse effect on the claim, demand, action, proceeding, investigation or allegation indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at Tenant's expense using counsel selected its sole cost and expense. Failure by an indemnifying party to notify the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or proceeding by Tenant continues for a third party within thirty (30) days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. (i) If an An Indemnified Party notifies Tenant shall promptly give notice (each, a “Notice of Indemnification”) to each Indemnifying Party after obtaining knowledge of any claim, demand, action, administrative or legal proceeding, investigation or allegation matter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party and Indemnifying Party provides written notice to Indemnified Party stating that Indemnifying Party is responsible for the entire claim within ten (10) days after Indemnifying Party’s receipt of the applicable Notice of Indemnification, shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such Notice of Indemnification promptly shall not affect the indemnification provided for in under this Paragraph 11 appliesArticle IX, Tenant except and only to the extent such Indemnifying Party shall assume have been actually prejudiced as a result of such failure or if such Notice of Indemnification is not given to Indemnifying Party prior the applicable Expiration Date. If an Indemnifying Party assumes the defense of such third party claim, such Indemnifying Party shall have full and complete control over the conduct of such proceeding on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory shall, subject to the Indemnified Party; providedprovisions of this Section 9.5, that the Indemnified Party shall have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, further, however, that any counsel chosen by such Indemnifying Party to conduct such defense shall be represented by advisory reasonably satisfactory to Indemnified Party; and provided, further, however, that Indemnifying Party shall not without the written consent of Indemnified Party consent to the entry of any judgment or enter into any settlement with respect to the matter which (a) does not include a provision whereby the plaintiff or the claimant in the matter releases Indemnified Party from all liability with respect thereto, and (b) in the case of Purchaser as Indemnifying Party, does not include any provision that would impose any obligation (including an obligation to refrain from taking action) upon Seller. Indemnified Party may participate in such proceeding and retain separate co-counsel at its sole cost and expense (and, for the avoidance of doubt, such cost and expense shall not constitute a Loss for purposes of the Indemnification Obligations). Notwithstanding the forgoing, (i) Purchaser, at any time when it believes that a claim for indemnification relates to or arises in connection with any criminal proceeding, indictment or investigation, may assume the defense and otherwise deal with such claim in good faith with counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalfchoice, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. be fully indemnified therefor, (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to Indemnifying Party may not assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the any claim if an actual conflict of interest exists between Indemnifying Party and Indemnified PartyParty that precludes effective joint representation, then the and (iii) Indemnified Party may contest (take over the defense and prosecution of a claim from Indemnifying Party if Indemnifying Party has failed or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the is failing to vigorously prosecute or defend such claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. An Indemnified Party (or in the case of a Seller Indemnified Party, the Seller Representative) shall promptly give notice to each Indemnifying Party after obtaining knowledge of any matter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XI, except, and only, to the extent such Indemnifying Party shall have been actually prejudiced as a result of such failure. Notwithstanding the foregoing, an Indemnifying Party may not assume the defense of any such third-party claim if the claim (i) could result in imprisonment of or imposition of a civil or criminal fine against the Indemnified Party, (ii) could result in an equitable remedy that would impair the Indemnified Party’s ability to exercise its rights under this Agreement, or impair the Purchaser’s right or ability to use the Purchased Assets or operate any Hospital, or (iii) the claim names both the Indemnifying Party and the Indemnified Party (including impleaded parties) and representation of both such Parties by the same counsel would create a conflict. If an Indemnifying Party assumes the defense of such third party claim, such Indemnifying Party shall agree prior thereto, in writing, that it is liable under this Article XI to indemnify the Indemnified Party notifies Tenant in accordance with the terms contained herein in respect of any such claim, demandshall conduct such defense diligently, action, administrative or legal proceeding, investigation or allegation as to which shall have full and complete control over the indemnity provided for in this Paragraph 11 applies, Tenant shall assume conduct of such proceeding on behalf of the Indemnified Party and shall, subject to the provisions of this Section 11.6, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such Indemnifying Party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party (or in the case of a Seller Indemnified Party, the Seller Representative); and provided, further, however, that the Indemnified Indemnifying Party shall have not without the right to be represented by advisory counsel written consent of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and (or in the case of a Seller Indemnified Party, the Seller Representative) consent to the entry of any judgment or enter into any settlement with respect to the matter which (x) does not include a provision whereby the plaintiff or the claimant in the matter releases the Indemnified Party shall have been advised from all liability with respect thereto, and (y) in writing the case of the Purchaser, does not include any provision that would impose any obligation (including an obligation to refrain from taking action) upon the Sellers. The Indemnified Party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by counsel that there may be legal defenses available an Indemnifying Party to it which are inconsistent with those available to Tenant, then notify the Indemnified Party shall have the right to select separate counsel to participate (or in the investigation and defense case of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the a Seller Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent Seller Representative) of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if its election to defend any such failure claim or proceeding by Tenant continues for a third party within thirty (30) days or more after Tenant is notified notice thereof, no or such contest need be made shorter time necessary to timely respond to a court filing, shall have been given to such Indemnifying Party by the Indemnified Party and settlement (or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion case of reputable counsel to the a Seller Indemnified Party, the settlement Seller Representative), shall be deemed a waiver by such Indemnifying Party of its right to defend such claim or payment in full is clearly advisableAction.

Assumption of Defense. (i) If an Indemnified Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 14 applies, Tenant shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with or in addition to those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 14 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if after any such failure by Tenant which continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as14 if, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If an Indemnified Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf Within 20 days after delivery of the Claim --------------------- Notice, the Indemnifying Party may, upon written notice thereof to the Indemnified Party and conduct with due diligence and in good faith Party, assume control of the investigation and defense thereof and the response thereto of such suit or proceeding with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; provided. If the Indemnifying Party does not so assume control of such defense within said 20 day period, that the Indemnified Party shall have control such defense. The party not controlling such defense (the right to be represented by advisory counsel of its own selection and "Non-controlling Party") may participate therein at its own expense; and provided further, that if any the Indemnifying Party assumes control of such claim, demand, action, proceeding, investigation or allegation involves both Tenant defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal conflicting interests or different defenses available with respect to it which are inconsistent with those available such suit or proceeding, the reasonable fees and expenses of counsel to Tenant, then the Indemnified Party shall be considered "Damages" or "Company Damages," as the case may be, for purposes of this Agreement. The party controlling such defense (the "Controlling Party") shall keep the Non- controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have the right to select separate counsel to participate in the investigation and defense of and response with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, actioninvoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the . The Indemnified Party for all Attorney's Fees incurred by shall not agree to any settlement of or consent to the Indemnified Party because entry of any judgment arising from any suit or proceeding without the consent of the selection Indemnifying Party, which shall not be unreasonably withheld or delayed. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such separate counsel. (ii) If any claim, demand, action, proceeding, investigation suit or allegation arises as to which proceeding without the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense prior written consent of the Indemnified Party, then which shall not be unreasonably withheld or delayed; provided that the consent of the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will shall not be unreasonably withheld) required if the claim, demand, action, proceeding, investigation Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or allegation at Tenant's expense using counsel selected by judgment and such settlement or judgment includes a complete release of the Indemnified Party from further liability and has no other adverse effect on the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i1) If an Indemnified Interested Party notifies Tenant Specialty Laboratories of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 12 applies, Tenant Specialty Laboratories shall assume on behalf of the Indemnified Interested Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory to the Indemnified Interested Party; provided, that the Indemnified Interested Party shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant Specialty Laboratories and the Indemnified Interested Party and the Indemnified Interested Party shall have been advised in writing by reputable counsel that there may be legal defenses available to it which are inconsistent with those available to TenantSpecialty Laboratories, then the Indemnified Interested Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant Specialty Laboratories shall pay or reimburse the Indemnified Interested Party for all Attorney's Fees incurred by the Indemnified Interested Party because of the selection of such separate counsel. (ii2) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 12 applies, and Tenant Specialty Laboratories fails to assume promptly (and in any event within fifteen (15) twenty days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Interested Party, then the Indemnified Interested Party may contest (or settle, with the prior written consent of TenantSpecialty Laboratories, which consent will shall not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's Specialty Laboratories' expense using counsel selected by the Indemnified Interested Party; provided, that if after any such failure by Tenant Specialty Laboratories which continues for thirty (30) sixty days or more after Tenant is notified thereof, no such contest need be made or continued by the Indemnified Interested Party and settlement or full payment of any claim may be made by the Indemnified Interested Party without Tenant's Specialty Laboratories' consent and without releasing Tenant Specialty Laboratories from any obligations to the Indemnified Interested Party under this Paragraph 11 so long as12 if, in the written opinion of reputable counsel to the Indemnified Interested Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. Upon assumption of the defense of a Claim by the Indemnifying Party: (ia) If an the Indemnifying Party will have the right to and will assume sole control and responsibility for dealing with the Claim; (b) the Indemnifying Party may, at its own cost, appoint as counsel in connection with conducting the defense and handling of such Claim any law firm or counsel reasonably selected by the Indemnifying Party; (c) the Indemnifying Party will keep the Indemnified Party notifies Tenant informed of the status of such Claim; and (d) the Indemnifying Party will have the right to settle the Claim on any claimterms the Indemnifying Party chooses; provided, demandhowever, actionthat it will not, administrative or legal proceeding, investigation or allegation as to which without the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf prior written consent of the Indemnified Party and conduct with due diligence and in good faith (not to be unreasonably withheld, conditioned or delayed), agree to a settlement of any Claim which (i) could impair a Party’s ability, right or obligation to perform its obligations under this Agreement or for Novartis to Practice the investigation and defense thereof and Assigned Patent Rights; (ii) could lead to liability or create any financial or other obligation on the response thereto with counsel selected by Tenant but reasonably satisfactory part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; or (iii) admits any wrongdoing or responsibility for the Claim on behalf of the Indemnified Party; provided, however, that for the avoidance of doubt, settlements involving only the payment of money by the Indemnifying Party will not constitute settlements that invoke clauses (i) through (iii). The Indemnified Party shall have will cooperate with the right Indemnifying Party and will be entitled to be represented by advisory counsel participate in, but not control, the defense of such Claim with its own selection counsel and at its own expense; and provided further. In particular, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party will furnish such records, information and the Indemnified Party shall have been advised in writing by counsel that there testimony, provide witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be legal defenses available to it which are inconsistent with those available to Tenant, then reasonably requested in connection therewith. Such cooperation will include access during normal business hours by the Indemnified Indemnifying Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalfto, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred reasonable retention by the Indemnified Party because of the selection of of, records and information that are reasonably relevant to such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 appliesClaim, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to making the Indemnified Party, the settlement Indemnitees and its and their employees and agents available on a mutually convenient basis to provide additional information and explanation of any records or payment in full is clearly advisableinformation provided.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any litigation resulting from such claim; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided under this Article XI except to the extent such indemnifying party shall have been prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in a criminal penalty or fine against the indemnified party the consequences of which would be reasonably likely to have a material adverse effect on the indemnified party unrelated to the size of such penalty or fine, or (iii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair 3-D's or Buyer's right or ability to operate Company. If an Indemnified Party notifies Tenant indemnifying party assumes the defense of any such third party claim, demandsuch indemnifying party shall agree prior thereto in writing that it is liable under this Article XI to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, actionshall conduct such defense diligently, administrative or legal proceeding, investigation or allegation as to which shall have full and complete control over the indemnity provided for in this Paragraph 11 applies, Tenant shall assume conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, in his or her or its sole discretion, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party shall have the right to be represented by advisory indemnified party. The indemnified party may participate in such proceeding and retain separate co- counsel of its own selection and at its own sole cost and expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and indemnifying party will not without the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, the indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which consent will does not be unreasonably withheld) include a provision whereby the claim, demand, action, proceeding, investigation plaintiff or allegation at Tenant's expense using counsel selected the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or action by Tenant continues for a third party within thirty (30) days or more after Tenant is notified thereof, no notice thereof shall have been given to such contest need be made indemnifying party by the Indemnified Party and settlement indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party’s ability to exercise its rights under this Agreement, or impair Madden’s right or ability to operate the Company, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If an Indemnified Party notifies Tenant indemnifying party assumes the defense of any such third party claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation as to which shall conduct such defense diligently, shall have full and complete control over the indemnity provided for in this Paragraph 11 applies, Tenant shall assume conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, subject to the provisions of this Section 12.5, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; providedindemnified party, that the Indemnified Party shall have the right such consent not to be represented by advisory counsel of its own selection and at its own expense; and provided furtherunreasonably withheld or delayed, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and indemnifying party will not without the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, the indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which consent will does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto or which may reasonably be unreasonably withheld) expected to have an adverse effect on the claim, demand, action, proceeding, investigation or allegation indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at Tenant's expense using counsel selected its sole cost and expense. Failure by an indemnifying party to notify the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or proceeding by Tenant continues for a third party within thirty (30) days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. (i) If an An Indemnified Party notifies Tenant shall promptly give notice (each, a “Notice of Indemnification”) to each Indemnifying Party after obtaining knowledge of any claim, demand, action, administrative or legal proceeding, investigation or allegation matter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such Notice of Indemnification promptly shall not affect the indemnification provided for in under this Paragraph 11 appliesArticle IX except, Tenant and only, to the extent such Indemnifying Party shall assume have been actually prejudiced as a result of such failure or if such Notice of Indemnification is not given to the Indemnifying Party prior the applicable Expiration Date. If an Indemnifying Party assumes the defense of such third party claim, such Indemnifying Party shall have full and complete control over the conduct of such proceeding on behalf of the Indemnified Party and shall, subject to the provisions of this Section 9.5, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such Indemnifying Party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; and provided, further, however, that the Indemnified Indemnifying Party shall have not without the right to be represented by advisory counsel written consent of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and consent to the entry of any judgment or enter into any settlement with respect to the matter which (a) does not include a provision whereby the plaintiff or the claimant in the matter releases the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent from all liability with those available to Tenantrespect thereto, then the Indemnified Party shall have the right to select separate counsel to participate and (b) in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because case of the selection of such separate counsel. Purchaser, does not include any provision that would impose any obligation (iiincluding an obligation to refrain from taking action) If any claim, demand, action, proceeding, investigation or allegation arises as to which upon the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Seller. The Indemnified Party may contest participate in such proceeding and retain separate co-counsel at its sole cost and expense (or settleand, with for the prior written consent avoidance of Tenantdoubt, which consent will such cost and expense shall not be unreasonably withheld) constitute a Loss for purposes of the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableIndemnification Obligations).

Assumption of Defense. (i) If an Indemnified Any Indemnifying Party notifies Tenant shall be entitled to participate in the defense of any claim, demand, such action, administrative or legal lawsuit, proceeding, investigation or allegation as other claim giving rise to which an Indemnified Party's claim for indemnification at such Indemnifying Party's expense, and at its option (subject to the indemnity provided for in this Paragraph 11 applies, Tenant limitations set forth below) and its expense shall assume on behalf of be entitled to appoint a nationally recognized and reputable counsel acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided that prior to the Indemnifying Party assuming control of such defense it shall first verify to the Indemnified Party in writing that such Indemnifying Party shall be fully responsible (with no reservation of any rights) for all liabilities and conduct obligations relating to the entire matter which gives rise to such claim for indemnification and that it will provide full indemnification (whether or not otherwise required hereunder), to the extent of the Escrow, to the Indemnified Party with due diligence respect to such matter, action, lawsuit, proceeding, investigation, or other claim giving rise to such claim for indemnification hereunder; and provided, further, that: (1) the Indemnified Party shall be entitled to participate in good faith the investigation defense of such claim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense thereof which, notwithstanding the foregoing, shall be borne by the Indemnifying Party); (2) the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the response thereto fees and expenses of counsel retained by the Indemnified Party if (v) the claim for indemnification relates to or arises in connection with counsel selected by Tenant but any criminal proceeding, action, indict- ment, allegation or investigation; (w) the Indemnified Party reasonably satisfactory believes that an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnified Party's reputation or future business prospects; (x) the claim seeks an injunction or equitable relief against the Indemnified Party; provided, that (y) the claim involves intellectual property matters in which case the Indemnified Party shall have sole control and management authority over the right to be represented by advisory counsel resolution of its own selection and at its own expense; and provided further, that if any such claim, demandincluding hiring legal counsel and intellectual property - consultants, actionnegotiating with the U.S. Patent Office and other governmental authorities and third parties and defending or settling claims and actions; or (z) upon petition by the Indemnified Party, proceeding, investigation an appropriate court rules that the Indemnifying Party failed or allegation involves both Tenant and is failing to vigorously prosecute or defend such claim; (3) if the Indemnifying Party does not assume control of the defense of any such claim within ten business days after the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection provides notice of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as claim pursuant to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified PartySection 3(d)(i), then the Indemnified Party may contest enter into any settlement of such claims and such settlement will be binding upon the Indemnifying Party for purposes of determining whether any amount of indemnification is payable pursuant to Section 3(b); provided that so long as the Indemnifying Party is not prohibited under clause (2) of this Section 3(d)(ii) from assuming control of the defense of such claim (except in the event that such prohibition is solely the result of clause (2)(w) of this Section or settlesolely the result of clause (2)(x) of this Section), with the Indemnified Party will obtain the prior consent (which consent shall not be unreasonably withheld) of the Indemnifying Party prior to entering into any such settlement; and (4) if the Indemnifying Party assumes control of the defense of any such claim, then the Indemnifying Party will obtain the prior written consent of Tenantthe Indemnified Party before entering into any settlement of such claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudice. Notwithstanding the foregoing, if the Indemnified Party is controlling the defense of such claim, the Indemnifying Party shall not be liable for any settlement effected without its prior written consent (which consent will shall not be unreasonably withheld) ). As used in this Section 3, the claimterm "settlement" refers to any settlement, demandcompromise, actionconsent or similar decree, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need election to permit default judgment to be made by the Indemnified Party and settlement or full payment entered in respect of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableclaim.

Assumption of Defense. (i) If an Indemnified Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf Within 20 days after delivery of the Claim Notice, the Indemnifying Party may, upon written notice thereof to the Indemnified Party and conduct with due diligence and in good faith Party, assume control of the investigation and defense thereof and the response thereto of such suit or proceeding with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; , provided, however, that any Claim relating to Taxes reflected or to be reflected in a Tax Return of Parent or the Buyer or any combined, consolidated or unit or group of which either is a member shall be controlled by the Parent. If the Indemnifying Party does not so assume control of such defense within said 20 day period, the Indemnified Party shall have control such defense. The party not controlling such defense (the right to be represented by advisory counsel of its own selection and "Non-controlling Party") may participate therein at its own expense; and provided further, that if any the Indemnifying Party assumes control of such claim, demand, action, proceeding, investigation or allegation involves both Tenant defense and counsel to the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party shall have been advised in writing by conflicting interests with respect to such suit or proceeding, the reasonable fees and expenses of counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall be considered "Damages" or "Shareholders Damages," as the case may be, for purposes of this Agreement. The party controlling such defense (the "Controlling Party") shall keep the Non- controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have the right to select separate counsel to participate in the investigation and defense of and response with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, actioninvoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the . The Indemnified Party for all Attorney's Fees incurred by shall not agree to any settlement of or consent to the Indemnified Party because entry of any judgment arising from any suit or proceeding without the consent of the selection Indemnifying Party, which shall not be unreasonably withheld or delayed. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such separate counsel. (ii) If any claim, demand, action, proceeding, investigation suit or allegation arises as to which proceeding without the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense prior written consent of the Indemnified Party, then which shall not be unreasonably withheld or delayed; provided that the consent of the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will shall not be unreasonably withheld) required if the claim, demand, action, proceeding, investigation Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any judgment and such failure by Tenant continues for thirty (30) days settlement or more after Tenant is notified thereof, no such contest need be made by judgment includes a complete release of the Indemnified Party from further liability and settlement or full payment does not contain any admission of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableliability.

Assumption of Defense. (ia) If an Indemnified The Indemnifying Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf have thirty (30) days after receipt of the Indemnified Claim Notice to elect, at its option, to assume and control the defense of, at its own expense and by its own counsel, any such Third-Party Claim and conduct with due diligence shall be entitled to assert any and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory all defenses available to the Indemnified PartyPerson to the fullest extent permitted by applicable law; provided that, prior to the Indemnifying Party assuming and controlling such defense, it shall first confirm to the Indemnified Person in writing that, assuming the facts then presented to the Indemnifying Party by the Indemnified Person being true, the Indemnifying Party shall indemnify the Indemnified Person for any such Losses to the extent resulting from, or arising out of, such Third-Party Claim; provided, further, that, if the Indemnifying Party assumes such defense and, in the course of defending such Third-Party Claim, (x) the Indemnifying Party discovers that the facts presented at the time the Indemnifying Party acknowledged its indemnification obligation in respect of such Third-Party Claim were not true and (y) such untruth provides a reasonable basis for asserting that the Indemnifying Party does not have an indemnification obligation in respect of such Third-Party Claim, then (A) the Indemnifying Party shall not be bound by such acknowledgment, (B) the Indemnifying Party shall promptly thereafter provide the Indemnified Person written notice of its assertion that it does not have an indemnification obligation in respect of such Third-Party Claim and (C) the Indemnified Person shall have the right to assume the defense of such Third-Party Claim (it being agreed that all costs and expenses in conducting such defense prior to the date that the Indemnified Person shall have the ability to assume the defense, including costs and expenses of counsel, shall be represented by advisory counsel the responsibility of the Indemnifying Party and not the Indemnified Person). If the Indemnifying Party shall undertake to compromise or defend any such Third-Party Claim, it shall promptly notify the Indemnified Person of its own selection and at its own expense; and provided furtherintention to do so, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Person agrees to, and to cause its Affiliates to, cooperate with the Indemnifying Party and its counsel in the Indemnified compromise of, or defense against, any such Third-Party Claim, including by furnishing nonprivileged books and records, personnel and witnesses, as appropriate for any defense of such Third-Party Claim; provided, however, that the Indemnifying Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or not settle, compromise or discharge, or admit any liability with respect to, any such Third-Party Claim without the prior written consent of Tenant, the Indemnified Person (which consent will not be unreasonably withheldwithheld or delayed) unless the relief consists solely of money damages and includes a provision whereby the plaintiff or claimant in the matter releases the Buyer Indemnified Persons or Seller Indemnified Persons, as applicable, from all liability with respect thereto. Notwithstanding an election to assume the defense of such action or proceeding, the Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such action or proceeding, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the claim, demand, action, proceeding, investigation Indemnified Person shall have determined in good faith after consultation with counsel that an actual or allegation at Tenant's expense using potential conflict of interest makes representation by the same counsel or the counsel selected by the Indemnifying Party inappropriate or (ii) the Indemnifying Party shall have authorized in writing the Indemnified Person to employ separate counsel at the Indemnifying Party’s expense. In any event, the Indemnified Person and Indemnifying Party and their counsel shall cooperate in the defense of any Third-Party Claim subject to this Article 9 and keep such Persons informed of all developments relating to any such Third-Party Claims, and provide copies of all relevant correspondence and documentation relating thereto. All costs and expenses incurred in connection with the Indemnified Person’s cooperation shall be borne by the Indemnifying Party. In any event, the Indemnified Person shall have the right at its own expense to participate in the defense of such asserted liability. If the Indemnifying Party receiving such notice of Third-Party Claim does not elect to defend, or does not defend, such Third-Party Claim, the Indemnified Person shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnifying Party’s expense, to defend such Third-Party Claim; provided, however, that if (i) the Indemnified Person’s defense of or participation in the defense of any such failure by Tenant continues for thirty (30) days Third-Party Claim shall not in any way diminish or more after Tenant is notified thereof, no such contest need be made by lessen the Indemnified Party and settlement or full payment obligations of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Indemnifying Party under this Paragraph 11 so long asArticle 9; and (ii) the Indemnified Person shall not settle, compromise or discharge, or admit any liability with respect to, any such Third-Party Claim without the written consent of the Indemnifying Party (which consent will not be unreasonably withheld or delayed). Notwithstanding anything to the contrary in this Agreement, in the case of a Third-Party Claim related to both (x) Taxes for which the Sellers have an indemnification obligation pursuant to Section 6.10(a) and (y) Taxes for which Buyer is responsible (a Joint Tax Claim) (and the portion of such Joint Tax Claim related to Taxes described in clause (x) is not separable from the portion of such Joint Tax Claim related to Taxes described in clause (y)), the Controlling Party shall have the right and obligation to conduct, at its own expense, such Joint Tax Claim; provided, however, that (A) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Joint Tax Claim, (B) the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such Joint Tax Claim, (C) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written opinion materials prepared or furnished in connection with such Joint Tax Claim, (D) the Controlling Party shall defend such Joint Tax Claim diligently and in good faith as if it were the only party in interest in connection with such Joint Tax Claim, (E) the Non-Controlling Party shall be entitled to participate in such Joint Tax Claim and attend any meetings or conferences with the relevant Taxing Authority, and (F) the Controlling Party shall not settle, compromise or abandon any such Joint Tax Claim without obtaining the prior written consent of reputable counsel the Non-Controlling Party, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of this Agreement, Controlling Party shall mean the Sellers, if the Sellers and their Affiliates are reasonably expected to bear the greater Tax liability in connection with such Joint Tax Claim, or the Buyer, if Buyer and its Affiliates are reasonably expected to bear the greater Tax liability in connection with such Joint Tax Claim (taking into account any potential liability in subsequent Tax periods); and Non-Controlling Party shall mean whichever of the Sellers or the Buyer is not the Controlling Party with respect to such Joint Tax Claim. (b) As promptly as is reasonably practicable (but in any event, within ten (10) Business Days) after becoming aware of a claim for indemnification under this Agreement not involving a Third-Party Claim, the Indemnified Person shall provide a Claim Notice to the Indemnified PartyIndemnifying Party of such claim. Each party hereto also agrees that any direct claim which such party may bring against any other party hereto under the provisions of this Agreement shall be governed exclusively by the provisions of this Article 9, the settlement or payment in full is clearly advisableother than Section 9.6(a).

Assumption of Defense. If any action or claim shall be brought or asserted by a third party against an indemnified party in respect of which indemnity may be sought from an indemnifying party, the indemnified party shall promptly notify the indemnifying party in writing (ibut the omission to notify the indemnifying party shall not release such person from any liability which it may have to the indemnified party, except to the extent that such failure materially prejudices the rights of the indemnifying party) If an Indemnified Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which and the indemnity provided for in this Paragraph 11 applies, Tenant indemnifying party shall assume on behalf the defense thereof (the legal counsel of the Indemnified Party and conduct with due diligence and in good faith indemnifying party must be reasonably acceptable to the investigation and defense thereof indemnified party), and the response thereto with counsel selected payment by Tenant but reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party indemnifying party of all reasonable expenses. The indemnified party shall have the right to be represented by advisory employ separate counsel of its own selection and at its own expense; and provided further, that if in any such claimaction and to participate in the defense thereof, demandbut the fees and expenses of such counsel shall be at the expense of the indemnified party, action, proceeding, investigation unless (a) the employment thereof has been specifically authorized in writing by the indemnifying party; (b) the indemnifying party has failed to assume the defense and employ counsel; or allegation involves (c) the named parties to such action include both Tenant the indemnifying party and the Indemnified Party indemnified party, and the Indemnified Party indemnified party shall have been advised in writing good faith by its counsel that there may the representation of the indemnifying party and the indemnified party by the same counsel would be legal defenses available inappropriate due to it actual or potential differing interests between them, in which are inconsistent with those available to Tenantcase the fees of counsel for the indemnified party shall be paid by the indemnifying party. In such events, then the Indemnified Party indemnifying party shall not have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of such action on behalf of the Indemnified Partyindemnified party. The indemnifying party shall not, then in connection with any one such action or separate but substantially similar or related actions in the Indemnified Party may contest (same jurisdiction arising out of the same general allegations or settlecircumstances, with be liable for the prior written consent reasonable fees and expenses of Tenantmore than one separate firm of attorneys at any time for the indemnified party, which consent will firm shall be designated by the indemnified party in writing. The indemnifying party shall not be unreasonably withheld) the claimliable for any settlement of any such action effected without its written consent, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that but if any such failure by Tenant continues action is settled with the indemnifying party's written consent, or if there shall be a final judgment for thirty (30) days or more after Tenant is notified thereofthe plaintiff in any such action, no the indemnifying party shall indemnify and hold harmless the indemnified party from and against any Damages arising from such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisablejudgment.

Assumption of Defense. (i) If an In the event that the Indemnifying Party notifies the Indemnified Party notifies Tenant of any claim, within the Notice Period that it elects to defend the Indemnified Party against a third party claim or demand, actionthe Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings, administrative or legal proceedingprovided that, investigation or allegation as to which except with the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf prior written consent of the Indemnified Party, no Indemnifying Party, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting the Indemnified Party and conduct or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnified Party of a release from all liability with due diligence and respect to such claim or litigation. In the event that the Indemnified Party shall in good faith determinethat the investigation and defense thereof and the response thereto Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with counsel selected by Tenant but reasonably satisfactory one or more of those that may be available to the Indemnified Party; providedIndemnifying Party in respect of such claim or any litigation relating thereto, that the Indemnified Party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to any such claim at the sole cost of the Indemnifying Party, provided that the Indemnifying Party shall not be represented by advisory counsel of its own selection and at its own expense; required to pay for more than one legal counsel, and provided furtherfurther that, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party does so take over and assume control, the Indemnified Party shall have been advised in writing by counsel not consent to entry of any judgment or settle such claim or litigation without the written consent of the Indemnifying Party. In the event that there may be legal defenses available to it the Indemnifying Party does not accept the defense of any matter for which are inconsistent with those available to Tenantindemnification is required, then the Indemnified Party shall have the full right to select separate counsel to participate in the investigation and defense of and response to defend against any such claim, claim or demand, action, proceeding, investigation and shall be entitled to settle or allegation on its own behalf, and Tenant shall agree to pay in full such claim or reimburse demand at the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because expense of the selection of such separate counsel. (ii) If Indemnifying Party. In any claimevent, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for Parties shall cooperate in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of any claim or litigation subject to this Article 9 and the Indemnified records of each shall be available to the other with respect to such defense. Each Indemnifying Party, then ’s obligation under this Article 9 shall not affect the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected other Party’s’ right to seek any other remedy upon a default by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Indemnifying Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableAgreement.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure, but shall relieve the indemnifying party for any liability for legal fees and expenses incurred prior to the date such notice is given. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair Madden's right or ability to operate either of the Companies, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If an Indemnified Party notifies Tenant indemnifying party assumes the defense of any such third party claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation as to which shall conduct such defense diligently, shall have full and complete control over the indemnity provided for in this Paragraph 11 applies, Tenant shall assume conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, subject to the provisions of this Section 12.4, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; providedindemnified party, that the Indemnified Party shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and indemnifying party will not without the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, the indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which consent will does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto or which may reasonably be unreasonably withheld) expected to have an adverse effect on the claim, demand, action, proceeding, investigation or allegation indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at Tenant's expense using counsel selected its sole cost and expense. Failure by an indemnifying party to notify the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or proceeding by Tenant continues for a third party within thirty (30) days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. If any Claim is brought against a Xxxxxxxx Indemnitee or a Matrix Indemnitee and the Claiming Party gives notice to the Indemnifying Party of such Claim, the Indemnifying Party will, unless the Claim involves Taxes (which shall be resolved in accordance with the procedures in Section 4.28), be entitled to participate in such Claim and, to the extent that it wishes (unless (i) If an Indemnified such Indemnifying Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as is also a party to which such Claim and the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf of the Indemnified Claiming Party and conduct with due diligence and determines in good faith that joint representation would be inappropriate, or (ii) the investigation Indemnifying Party fails to provide reasonable assurance to the Claiming Party of its financial capacity to defend such Claim and provide indemnification with respect to such Claim), to assume the defense thereof and the response thereto of such Claim with counsel selected by Tenant but reasonably satisfactory to the Indemnified Claiming Party and, after notice from the Indemnifying Party to the Claiming Party of its election to assume the defense of such Claim, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Claiming Party or the other relevant Xxxxxxxx Indemnitee(s) or Matrix Indemnitee(s) (as applicable) under this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim, in each case subsequently incurred by the Claiming Party or the other relevant Xxxxxxxx Indemnitee(s) or Matrix Indemnitee(s) (as applicable) in connection with the defense of such Claim, other than their reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Claim, (i) it will be conclusively established for purposes of this Agreement that the Claim (and any resulting Damages) are within the scope of and subject to indemnification by the Indemnifying Party; provided(ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Claiming Party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the Claiming Party or any other Xxxxxxxx Indemnitee or Matrix Indemnitee (as applicable), and (B) the sole relief provided is monetary damages that are paid in full by the Indemnified Indemnifying Party; and (iii) the Claiming Party and each relevant Xxxxxxxx Indemnitee or Matrix Indemnitee (as applicable) will have no liability with respect to any compromise or settlement of such Claims effected without its consent. The Claiming Party and any relevant Xxxxxxxx Indemnitee or Matrix Indemnitee shall be entitled to participate (at its expense) in the defense of any Claim assumed by the Indemnifying Party as contemplated herein. If notice is given to an Indemnifying Party of any Claim and the Indemnifying Party does not, within ten days after the Claiming Party's notice is given, give notice to the Claiming Party of its election to assume the defense of such Claim, the Indemnifying Party will no longer have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, assume that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalfdefense, and Tenant shall pay will be bound by any determination made in such Claim or reimburse the Indemnified Party for all Attorney's Fees incurred any compromise or settlement effected by the Indemnified Claiming Party because of the selection of such separate counselor any other Xxxxxxxx Indemnitee or Matrix Indemnitee (as applicable). (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party’s ability to exercise its rights under this Agreement, or impair Madden’s right or ability to operate the Company, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If an Indemnified Party notifies Tenant indemnifying party assumes the defense of any such third party claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation as to which shall conduct such defense diligently, shall have full and complete control over the indemnity provided for in this Paragraph 11 applies, Tenant shall assume conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, subject to the provisions of this Section 12.4, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; providedindemnified party, that the Indemnified Party shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and indemnifying party will not without the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenantthe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto, or which consent will may be reasonably expected to have an adverse effect on the indemnified party and does not be unreasonably withheld) provide that the claimindemnified party is without fault, demandor, actionwith respect to an indemnification relating to Taxes, proceeding, investigation if such settlement could affect the Taxes of the Company or allegation the Madden Indemnified Parties for a period or portion thereof beginning on or after the Closing Date. The indemnified party may participate in such proceeding and retain separate co-counsel at Tenant's expense using counsel selected its sole cost and expense. Failure by an indemnifying party to notify the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or proceeding by Tenant continues for a third party within thirty (30) days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. (ia) If an Indemnified Party Purchaser notifies Tenant Seller of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 Section 4.1(n)(iii) applies, Tenant Seller shall assume on behalf of the Indemnified Party Purchaser and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory to the Indemnified PartyPurchaser; provided, that the Indemnified Party Purchaser shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant Seller and the Indemnified Party Purchaser and the Indemnified Party Purchaser shall have been advised in writing by counsel reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to TenantSeller, then the Indemnified Party Purchaser shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorneybehalf at Seller's Fees incurred by the Indemnified Party because of the selection of such separate counselexpense. (iib) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 Section 4.1(n)(iii) applies, and Tenant Seller fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified PartyPurchaser, then the Indemnified Party Purchaser may contest (or settleor, with the prior written consent of TenantSeller, which consent will not be unreasonably withheldsettle) the claim, demand, action, proceeding, investigation or allegation at TenantSeller's expense using counsel selected by the Indemnified PartyPurchaser; provided, that if after any such failure by Tenant Seller which continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party Purchaser and settlement or full payment of any claim may be made by the Indemnified Party Purchaser without TenantSeller's consent and without releasing Tenant Seller from any obligations to the Indemnified Party Purchaser under this Paragraph 11 so long asSection 4.1(n)(iii) if, in the written opinion of reputable counsel to the Indemnified PartyPurchaser, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If an Indemnified Party notifies Tenant An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any claim, demand, action, administrative or legal proceeding, investigation or allegation matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided for under Section 8.10, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. If such indemnity claim shall arise from an action or claim of a third party, the indemnifying party shall be entitled to assume the defense of any such claim or any proceeding resulting from such claim; provided that the indemnifying party has acknowledged in writing to the indemnified party that it will be obligated to indemnify the indemnified party with respect to such claim in accordance with this Paragraph 11 appliesAgreement. If an indemnifying party assumes the defense of such third-party claim, Tenant such indemnifying party shall assume have full and complete control over the conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, subject to the provisions of this Section 8.11, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party shall have the right to be represented by advisory indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel of its own selection and at its own sole cost and expense; and provided further, that if the named parties to the action or proceeding (including any such claim, demand, action, proceeding, investigation or allegation involves impleaded parties) include both Tenant the indemnifying party and the Indemnified Party indemnified party and the Indemnified Party shall have indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to it which the indemnified party that are inconsistent with different from or additional to those available to Tenantthe indemnifying party, then the Indemnified Party shall have the right indemnified party will be entitled to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalfchoosing, and Tenant shall pay or reimburse at the Indemnified Party for all Attorney's Fees incurred by reasonable expense of indemnified party. The indemnifying party will not without the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenantthe indemnified party, which such consent will not to be unreasonably withheld) withheld or delayed, consent to the claim, demand, action, proceeding, investigation entry of any judgment or allegation at Tenant's expense using counsel selected enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or proceeding by Tenant continues for a third party within thirty (30) days or more after Tenant is notified thereof, no notice thereof shall have been given to such contest need be made indemnifying party by the Indemnified Party and settlement indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. An indemnified party shall promptly give written notice (which notice shall describe in reasonable detail the claim, the provisions of this Agreement upon which such claim is based and the total monetary damages sought) to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying parry because of the indemnity set forth in this Section 13, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Section 13, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Seller Indemnified Liabilities or Buyer Indemnified Liabilities, as applicable, that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, or (ii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If an Indemnified Party notifies Tenant indemnifying party assumes the defense of any such third party claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Section 13 to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation as to which shall conduct such defense diligently, shall have full and complete control over the indemnity provided for in this Paragraph 11 applies, Tenant shall assume conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, subject to the provisions of this Section 13, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; providedindemnified party, that the Indemnified Party shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and indemnifying party will not without the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenantthe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto, or which consent will may reasonably be expected to have an adverse effect on the indemnified party. The indemnified party may participate in, but may not be unreasonably withheld) control, such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or proceeding by Tenant continues for a third party within thirty (30) days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. (i) If an Indemnified Party notifies Tenant An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any claim, demand, action, administrative or legal proceeding, investigation or allegation matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided for under this Article X, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if the claim (a) is reasonably likely to result in imprisonment or another criminal penalty of the indemnified party, (b) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Paragraph 11 appliesAgreement, Tenant or materially impair Buyer's right or ability to operate the Company or the Sub S Holding Corporation or the Company's, the Sub S Holding Corporation's or any Subsidiary's right to operate any material part of the Business, or (c) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If an indemnifying party assumes the defense of such third-party claim, such indemnifying party shall assume agree prior thereto, in writing, that it is liable under this Article X to indemnify the indemnified party in accordance with the terms contained herein in respect of such third-party claim, shall conduct such defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, subject to the provisions of this Section 10.4, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party shall have the right to be represented by advisory indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel of its own selection and at its own sole cost and expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and indemnifying party will not without the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, the indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which consent will does not be unreasonably withheld) include a provision whereby the claim, demand, action, proceeding, investigation plaintiff or allegation at Tenant's expense using counsel selected the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or proceeding by Tenant continues for a third party within thirty (30) days or more after Tenant is notified thereof, no notice thereof shall have been given to such contest need be made indemnifying party by the Indemnified Party and settlement indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. Within thirty (i30) If an Indemnified days after delivery of such notification, the Indemnifying Party notifies Tenant may, upon written notice thereof to the Entitled Party, assume control of any claim, demand, the defense of such action, administrative suit, proceeding or legal proceedingclaim. If the Indemnifying Party does not assume control of such defense, investigation or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Entitled Party shall have the right to be represented by advisory counsel of its own selection and control such defense. The Party not controlling such defense may participate therein at its own expense; provided, however, that if the Indemnifying Party assumes control of such defense and provided the Entitled Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Entitled Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Entitled Party solely in connection therewith; provided, further, that if in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel in any one jurisdiction for all Entitled Parties. The Party controlling such claim, demand, defense shall keep the other Party advised of the status of such action, proceedingsuit, investigation proceeding or allegation involves both Tenant claim and the Indemnified defense thereof and shall consider recommendations made by the other Party and the Indemnified with respect thereto. The Entitled Party shall have been advised in writing by counsel that there may be legal defenses available not agree to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense any settlement of and response to such claim, demand, action, proceedingsuit, investigation proceeding or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with claim without the prior written consent of Tenantthe Indemnifying Party, which consent will shall not be unreasonably withheld) the claim, demanddelayed, denied or conditioned. The Indemnifying Party shall not agree to any settlement of such action, proceedingsuit, investigation proceeding or allegation at Tenant's expense using counsel selected by claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party; provided, Entitled Party from all liability with respect thereto or that if imposes any such failure by Tenant continues for thirty (30) days liability or more after Tenant is notified thereof, no such contest need be made by obligation on the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Entitled Party without Tenant's the prior written consent and without releasing Tenant from any obligations to of the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Entitled Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If an Indemnified Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 12 applies, Tenant shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; provided, that the Indemnified Party shall have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with or in addition to those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 12 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if after any such failure by Tenant which continues for thirty forty-five (3045) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as12 if, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If an Indemnified Party notifies Tenant of any claimRegarding claims asserted under this Section 4.05 and involving third party claims, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf within 20 days after delivery of the Claim Notice, the Indemnifying Party may, upon written notice thereof to the Indemnified Party and conduct with due diligence and in good faith Party, assume control of the investigation and defense thereof and the response thereto of such suit or proceeding with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party shall not be entitled to control and the Indemnified Party shall be entitled to have sole control over any claim to the extent such claim seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise) or prospects of the Indemnified Party or relates to Taxes reflected or to be reflected in a Tax Return of the Indemnified Party, provided that the Indemnified Party shall have provide written notice to the right to be represented by advisory counsel Indemnifying Party of its own selection and election to assume control over the defense of such claim pursuant to this Section 6.05. If the Indemnifying Party does not so assume control of such defense within said 20 day period, the Indemnified Party shall control such defense. The party not controlling such defense (the "Non-controlling Party") shall be entitled to participate therein at its own expense; and provided further, that if any the Indemnifying Party assumes control of such claim, demand, action, proceeding, investigation or allegation involves both Tenant defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal conflicting interests or different defenses available with respect to it which are inconsistent with those available to Tenantsuch suit or proceeding, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the investigation and defense of such action, with the reasonable fees and response expenses of counsel to the Indemnified Party being considered "Damages" for purposes of this Agreement. Except in a case of such conflict, the party controlling such defense (the "Controlling Party") shall keep the Non-controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, actioninvoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the . The Indemnified Party for all Attorney's Fees incurred by shall not agree to any settlement of or consent to the Indemnified Party because entry of any judgment arising from any suit or proceeding without the consent of the selection Indemnifying Party which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such separate counsel. (ii) If any claim, demand, action, proceeding, investigation suit or allegation arises as to which proceeding without the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense prior written consent of the Indemnified Party, then which shall not be unreasonably withheld or delayed; provided that the consent of the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will shall not be unreasonably withheld) required if the claim, demand, action, proceeding, investigation Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or allegation at Tenant's expense using counsel selected by judgment and such settlement or judgment includes a complete release of the Indemnified Party from further liability and has no other adverse effect on the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If an requested by the Indemnified Party, the Indemnifying Party notifies Tenant shall assume the defense of any claim, demand, action, administrative or legal proceeding, investigation or allegation as to which the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf of claim against the Indemnified Party in respect of which indemnification is being sought under this Agreement, provided there is a reasonable prospect of success in pursuing such defense. In addition, the Indemnifying Party may, by written Notice delivered to the Indemnified Party with reasonable promptness after receipt of the Notice from the Indemnified Parly under Clause 12.3(b) or otherwise after the indemnifying Party becomes aware of any indemnification that could be sought under this Agreement, elect to assume the defense of such claim. Any assumption by the Indemnifying Party of such defense shall include the right to select and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with retain counsel selected by Tenant but reasonably satisfactory acceptable to the Indemnified Party; provided, that . If the Indemnified Indemnifying Party shall have the right assumes such defense in accordance with this Clause 12.3(c) with counsel reasonably acceptable to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then (t) the Indemnified Party may contest may, at its own expense, participate in (or settlebut not control) the defense of such claim with separate counsel, with and (ii) the prior written consent of Tenant, which consent will Indemnifying Party shall not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any liable to such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement under this Clause 12.3 for any fees or full payment disbursements of any claim may be made counsel subsequently incurred by the such Indemnified Party without Tenant's consent and without releasing Tenant from any obligations in connection with such defense unless the Indemnifying Party has authorized the retention of counsel to the Indemnified Party under this Paragraph 11 at the expense of the Indemnifying Party. Assumption of such defense by the Indemnifying Party also includes the right to appear in proceedings on behalf of such Indemnified Party and to propose, accept or reject offers of settlement, all at its sole cost, so long asas such Indemnifying Party conducts such defense diligently and with competent counsel, in and any such settlement includes a full and final resolution (without requiring contribution from the written opinion Indemnified Party therefor) of reputable counsel to the subject claim and does not include any injunctive or non-monetary relief affecting the Indemnified Party, and the settlement or payment in full is clearly advisablesubject claim does not involve allegations of criminal wrongdoing.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining Knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any litigation resulting from such claim; PROVIDED, HOWEVER, that failure promptly to give any such notice shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in a criminal penalty or fine against the indemnified party the consequences of which would be reasonably likely to have a material adverse effect on the indemnified party unrelated to the size of such penalty or fine, or (iii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair TKOG's or Canadian Buyer's right or ability to operate the Company. If an Indemnified Party notifies Tenant indemnifying party assumes the defense of any such third party claim, demandsuch indemnifying party shall agree prior thereto in writing that it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, actionshall conduct such defense diligently, administrative or legal proceeding, investigation or allegation as to which shall have full and complete control over the indemnity provided for in this Paragraph 11 applies, Tenant shall assume conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, in his or her or its sole discretion, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; PROVIDED, HOWEVER, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; provided, indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense (except that the Indemnified Party indemnifying party shall have be responsible for the right fees and expenses of one separate co-counsel for the indemnified party to be represented the extent the indemnified party is advised by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that either (x) the counsel the indemnifying party has selected has a conflict of interest or (y) there may be are legal defenses available to it which the indemnified party that are inconsistent with different from or additional to those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalfindemnifying party), and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by indemnifying party will not without the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, the indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which consent will does not be unreasonably withheld) include a provision whereby the claim, demand, action, proceeding, investigation plaintiff or allegation at Tenant's expense using counsel selected the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or action by Tenant continues for a third party within thirty (30) days or more after Tenant is notified thereof, no notice thereof shall have been given to such contest need be made indemnifying party by the Indemnified Party and settlement indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any litigation resulting from such claim; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided under this Article VIII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in a criminal penalty or fine against the indemnified party the consequences of which would be reasonably likely to have a Material Adverse Effect on the indemnified party unrelated to the size of such penalty or fine, or (iii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair CALLISTO's right or ability to operate the Company. If an Indemnified Party notifies Tenant indemnifying party assumes the defense of any such third party claim, demandsuch indemnifying party shall conduct such defense diligently, action, administrative or legal proceeding, investigation or allegation as to which shall have full and complete control over the indemnity provided for in this Paragraph 11 applies, Tenant shall assume conduct of such proceeding on behalf of the Indemnified Party indemnified party and shall, in his or her or its sole discretion, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, however, that any counsel chosen by such indemnifying party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto with counsel selected by Tenant but shall be reasonably satisfactory to the Indemnified Party; provided, indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense (except that the Indemnified Party indemnifying party shall have be responsible for the right fees and expenses of one separate co-counsel for the indemnified party to be represented the extent the indemnified party is advised by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that either (x) the counsel the indemnifying party has selected has a conflict of interest or (y) there may be are legal defenses available to it which the indemnified party that are inconsistent with different from or additional to those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalfindemnifying party), and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by indemnifying party will not without the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, the indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which consent will does not be unreasonably withheld) include a provision whereby the claim, demand, action, proceeding, investigation plaintiff or allegation at Tenant's expense using counsel selected the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the Indemnified Party; provided, that if indemnified party of its election to defend any such failure claim or action by Tenant continues for a third party within thirty (30) days or more after Tenant is notified thereof, no notice thereof shall have been given to such contest need be made indemnifying party by the Indemnified Party and settlement indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisableaction.

Assumption of Defense. If any Claim is brought against a Caldwell Indemnitee or a Matrix Indemnitee and the Claiming Party gives notice to the Indemnifying Party of such Claim, the Indemnifying Party will, unless the Claim involves Taxes (which shall be resolved in accordance with the procedures in Section 4.28), be entitled to participate in such Claim and, to the extent that it wishes (unless (i) If an Indemnified such Indemnifying Party notifies Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation as is also a party to which such Claim and the indemnity provided for in this Paragraph 11 applies, Tenant shall assume on behalf of the Indemnified Claiming Party and conduct with due diligence and determines in good faith that joint representation would be inappropriate, or (ii) the investigation Indemnifying Party fails to provide reasonable assurance to the Claiming Party of its financial capacity to defend such Claim and provide indemnification with respect to such Claim), to assume the defense thereof and the response thereto of such Claim with counsel selected by Tenant but reasonably satisfactory to the Indemnified Claiming Party and, after notice from the Indemnifying Party to the Claiming Party of its election to assume the defense of such Claim, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Claiming Party or the other relevant Caldwell Indemnitee(s) or Matrix Indemnitee(s) (as applicable) under this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim, in each case subsequently incurred by the Claiming Party or the other relevant Caldwell Indemnitee(s) or Matrix Indemnitee(s) (as applicable) in connection with the defense of such Claim, other than their reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Claim, (i) it will be conclusively established for purposes of this Agreement that the Claim (and any resulting Damages) are within the scope of and subject to indemnification by the Indemnifying Party; provided(ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Claiming Party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the Claiming Party or any other Caldwell Indemnitee or Matrix Indemnitee (as applicable), and (B) the sole relief provided is monetary damages that are paid in full by the Indemnified Indemnifying Party; and (iii) the Claiming Party and each relevant Caldwell Indemnitee or Matrix Indemnitee (as applicable) will have no liability with respect to any compromise or settlement of such Claims effected without its consent. The Claiming Party and any relevant Caldwell Indemnitee or Matrix Indemnitee shall be entitled to participate (at its expense) in the defense of any Claim assumed by the Indemnifying Party as contemplated herein. If notice is given to an Indemnifying Party of any Claim and the Indemnifying Party does not, within ten days after the Claiming Party's notice is given, give notice to the Claiming Party of its election to assume the defense of such Claim, the Indemnifying Party will no longer have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, assume that if any such claim, demand, action, proceeding, investigation or allegation involves both Tenant and the Indemnified Party and the Indemnified Party shall have been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Tenant, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalfdefense, and Tenant shall pay will be bound by any determination made in such Claim or reimburse the Indemnified Party for all Attorney's Fees incurred any compromise or settlement effected by the Indemnified Claiming Party because of the selection of such separate counselor any other Caldwell Indemnitee or Matrix Indemnitee (as applicable). (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Paragraph 11 applies, and Tenant fails to assume promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (or settle, with the prior written consent of Tenant, which consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Tenant's expense using counsel selected by the Indemnified Party; provided, that if any such failure by Tenant continues for thirty (30) days or more after Tenant is notified thereof, no such contest need be made by the Indemnified Party and settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to the Indemnified Party under this Paragraph 11 so long as, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.