Common use of CONFIDENTIAL TREATMENT REQUESTED Clause in Contracts

CONFIDENTIAL TREATMENT REQUESTED. Confidential portions of this document have been redacted and have been separately filed with the Commission. Notwithstanding the preceding paragraph, if in any action, claim, or proceeding as to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, to the indemnifying party’s interests or that there may be legal defenses available to the indemnified person that are different from, in addition to, or inconsistent with the defenses available to the indemnifying party, the indemnified person may retain its own counsel in connection with such action, claim, or proceeding and will be indemnified (provided the indemnified person is so entitled) by the indemnifying party for any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding. In no event will the indemnifying party be liable for the fees and expenses of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction arising out of the same general allegations. The indemnifying party will not be liable for any settlement of any action, claim, or proceeding effected without the indemnifying party’s express written consent, but if any action, claim, or proceeding, is settled with the indemnifying party’s express written consent, the indemnifying party will indemnify, defend, and hold harmless an indemnified person as provided in this Section 7.

CONFIDENTIAL TREATMENT REQUESTED. Confidential portions of this document have been redacted and have been separately filed with notice of the Commission. Notwithstanding the preceding paragraph, if in commencement of any action, claimif a claim in respect thereof is to be made against the other party (“indemnifying party”), the indemnified party shall promptly notify the indemnifying party in writing of the commencement thereof as soon as practicable after the summons or proceeding as other first written notification giving information of the nature of the claim has been served upon the indemnified party; provided that the failure to which indemnification is or may be available hereunderso notify the indemnifying party will not relieve the indemnifying party from any liability under this section, an indemnified person reasonably determines except to the extent that its interests are or may be adverse, the omission results in whole or in part, a failure of actual notice to the indemnifying party and such indemnifying party is damaged solely as a result of the failure to give such notice. The indemnifying party’s interests or that there may be legal defenses available , upon the request of the indemnified party, shall retain counsel satisfactory to the indemnified person that are different from, in addition to, or inconsistent with the defenses available party to the indemnifying party, represent the indemnified person may party in the proceeding, and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel in connection with such actioncounsel, claim, or proceeding and will be indemnified (provided but the indemnified person is so entitled) by the indemnifying party for any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding. In no event will the indemnifying party be liable for the reasonable fees and expenses of more than one such counsel for all shall be at the expense of such indemnified persons in connection with party unless (1) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (2) the named parties to any one action; claim, or such proceeding or in connection with separate but similar or related actions, claims, or proceedings in (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same jurisdiction arising out of the same general allegationscounsel would be inappropriate due to actual or potential differing interests between them. The indemnifying party will shall not be liable for any settlement of any action, claim, or proceeding effected without the indemnifying party’s express its written consent, consent but if any action, claim, or proceeding, is settled with such consent or if there be a final judgment for the indemnifying party’s express written consentplaintiff, the indemnifying party will indemnify, defend, agrees to indemnify the indemnified party from and hold harmless an indemnified person as provided in this Section 7against any loss or liability by reason of such settlement or judgment.

CONFIDENTIAL TREATMENT REQUESTED. Confidential portions 6.9. If the Indemnifying Party agrees to defend such Claim, the Indemnifying Party will have full control of this document have been redacted such defense, including any settlement thereof (subject to the rights of the Indemnified Party as set forth in the immediately preceding paragraph), and have been separately filed if requested by the Indemnifying Party, the Indemnified Party agrees to cooperate fully with the CommissionIndemnifying Party and its attorneys with respect to such contest and defense at the expense of the Indemnifying Party. Notwithstanding The Indemnified Party shall have the preceding paragraph, if in any action, claim, or proceeding as right to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, to the indemnifying party’s interests or that there may be legal defenses available to the indemnified person that are different from, in addition to, or inconsistent with the defenses available to the indemnifying party, the indemnified person may retain engage its own counsel and to participate in, but not control, such defense, but the Indemnified Party shall be solely responsible for all fees and expenses of its own counsel. 6.10. If the Indemnifying Party does not agree to defend such Claim or fails to notify the Indemnified Party of its election as herein provided, the Indemnifying Party agrees to pay the reasonable costs and expenses of the Indemnified Party, including, without limitation, reasonable attorneys' and paralegals' fees, interest and penalties incurred in connection with such actioncontest and defense, claimmonthly, or proceeding against the receipt of invoices with supporting documentation and will be indemnified (provided promptly pay any judgment rendered against or settlement reached by such Indemnified Party with respect to any such Claim; provided, however, that the indemnified person is so entitled) by the indemnifying party for any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding. In no event will the indemnifying party be liable for the fees and expenses of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction arising out of the same general allegations. The indemnifying party Indemnifying Party will not be liable hereunder for any settlement of made by any action, claim, or proceeding effected Indemnified Party without the indemnifying party’s express its prior written consent, but if any action, which consent will not be unreasonably withheld. If the Indemnifying Party has timely disputed its liability with respect to such third party claim, or proceedingthe Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute. Failing such resolution, is settled with either party may elect to commence arbitration as set forth in Paragraph 8.6. 6.11. During the indemnifying party’s express written consentterm of this Agreement and for a period of ten years thereafter if on a claims made basis, the indemnifying each party will indemnifymaintain comprehensive general liability insurance in an amount normally carried by entities engaged in this type of business covering the indemnification, defenddefense, hold harmless, and hold harmless an indemnified person as provided in other obligations of that party under this Section 7.Agreement. 12 * CONFIDENTIAL TREATMENT REQUESTED

CONFIDENTIAL TREATMENT REQUESTED. Confidential portions (c) In the event that the Indemnified Party conducts the defense of the Third Party Claim pursuant to this document have been redacted and have been separately filed with Section 10.5, the Commission. Notwithstanding the preceding paragraph, if Indemnifying Party shall be entitled to participate fully in any action, claim, or proceeding as such defense with separate counsel at its expense. The Parties hereto agree to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, to the indemnifying party’s interests or that there may be legal defenses available to the indemnified person that are different from, in addition to, or inconsistent cooperate with the defenses available to the indemnifying party, the indemnified person may retain its own counsel each other in connection with such actionthe defense, claim, negotiation or proceeding and will be indemnified (provided the indemnified person is so entitled) by the indemnifying party for any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding. In no event will the indemnifying party be liable for the fees and expenses of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction arising out of the same general allegations. The indemnifying party will not be liable for any settlement of any actionsuch Third Party Claim. The Indemnifying Party will (i) advance the Indemnified Party promptly and periodically for the reasonable costs of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) and (ii) remain responsible for any and all other Losses that the Indemnified Party may incur or suffer resulting from, claimarising out of, relating to, in the nature of or proceeding effected without caused by the indemnifying party’s express written consent, but if any action, claim, or proceeding, is settled with Third Party Claim to the indemnifying party’s express written consent, the indemnifying party will indemnify, defend, and hold harmless an indemnified person as fullest extent provided in this ARTICLE 10. Notwithstanding anything in this Section 710.5 to the contrary and with the exception of Third Party Claims related to any Taxes, the Indemnified Party shall not, without the written consent of the Indemnifying Party, settle or compromise any Third Party Claim or permit a default or consent to entry of any Judgment unless (1) the claimant provides to Indemnifying Party an unqualified release of the Indemnifying Parties from all liability in respect of such Third Party Claim, (2) such settlement does not involve any injunctive relief binding upon the Indemnifying Party or any of its Affiliates and (3) such settlement does not involve any admission of liability or wrongdoing by any Indemnifying Party or any of its Affiliates.

CONFIDENTIAL TREATMENT REQUESTED. Confidential portions In the event that the Indemnifying Party did not elect to assume the defense, or is otherwise prohibited from assuming the defense, of such Third Party Claim in accordance with clause (c) of this document have been redacted Section 9.04 and have been separately filed with the Commission. Notwithstanding the preceding paragraph, if in any action, claim, or proceeding as to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, subsequent to the indemnifying party’s interests or that there may be legal defenses available time periods set forth in clause (c) of this Section 9.04, the Indemnifying Party (A) confirms in writing to the indemnified person Indemnified Party the Indemnifying Party’s responsibility to indemnify, defend and hold harmless the Indemnified Party therefore, (B) reimburses the Indemnified Party for all out-of-pocket Losses (including without limitation all Legal Expenses) theretofore incurred by such Indemnified Party with respect to such Third Party Claim, and (C) demonstrates to the Indemnified Party’s good faith reasonable satisfaction that the Indemnifying Party has or can be reasonably expected to have sufficient financial resources in order to indemnify for the full amount of any quantifiable Losses that are different from, in addition to, or inconsistent with the defenses available reasonably likely to the indemnifying party, the indemnified person may retain its own counsel be incurred in connection with such action, claim, then the Indemnifying Party shall be entitled to assume control over the compromise or proceeding defense of such Third Party Claim at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, which counsel will be indemnified reasonably satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume control over the compromise and defense of such Third Party Claim, the Indemnifying Party shall provide the Indemnified Party written notice of such Indemnifying Party’s intent to do so, and the Indemnified Party shall and shall cause each of its Affiliates and Representatives to cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim; provided, however, that: (provided i) the indemnified person Indemnified Party may, if such Indemnified Party so desires, employ counsel at such Indemnified Party’s own expense to assist and participate in the handling (but not control the defense) of any Third Party Claim; (ii) the Indemnifying Party shall keep the Indemnified Party advised of all material events with respect to any Third Party Claim; and (iii) no Indemnifying Party will, without the prior written consent of each Indemnified Party (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment in any pending or threatened Action in respect of which indemnification may be sought hereunder (whether or not any such Indemnified Party is so entitleda party to such Action), (A) unless such settlement, compromise or consent by its terms obligates the indemnifying party for any legal and other expenses reasonably incurred Indemnifying Party to pay the full amount of the liability in connection with investigating or defending such action, claim, or proceeding. In no event will the indemnifying party be liable for the fees Third Party Claim and expenses includes a complete and unconditional release of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction such Indemnified Parties from all liability arising out of such claim or Action as well as no admission of wrongdoing on behalf of the same general allegations. The indemnifying party will not be liable for any settlement of any action, claim, or proceeding effected without the indemnifying party’s express written consent, but if any action, claim, or proceeding, is settled with the indemnifying party’s express written consent, the indemnifying party will indemnify, defendIndemnified Parties, and hold harmless an indemnified person as provided in this Section 7(B) to the extent such judgment, compromise, consent or settlement provides for equitable relief which adversely effects the Indemnified Party.

CONFIDENTIAL TREATMENT REQUESTED. Confidential portions not be unreasonably withheld, except that the Indemnifying party may settle any claim without the Indemnified Person’s consent if the settlement involves no obligation other than the payment of this document have been redacted money from which the Indemnifying Party provides complete indemnification hereunder and have been separately filed with includes a complete release of the CommissionIndemnified Person. Notwithstanding If the preceding paragraph, if in any action, Indemnifying Party fails to assume the defense of the claim, the Indemnified Person shall defend the claim and shall be entitled to be indemnified against the reasonable legal fees and other costs incurred in such defense. If the Indemnifying Party assumes the defense of a third-party claim, it shall not be responsible for any legal fees or proceeding as to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, to related costs thereafter incurred by the indemnifying party’s interests or that there may be legal defenses available to the indemnified person that are different from, in addition to, or inconsistent with the defenses available to the indemnifying party, the indemnified person may retain its own counsel Indemnified Person in connection with the claim; provided that, if the Indemnifying Person is also a party to the claim and the representation of both the Indemnified Person and the Indemnifying Party by the same counsel would involve a conflict of interest for such actioncounsel, the Indemnified Person may retain separate counsel to defend the claim on its behalf and shall be entitled to indemnification against the reasonable legal fees and related costs incurred in such defense. If the Indemnified Person defends any third-party claim, whether as a result of the Indemnifying Party’s failure to assume the defense or proceeding as a result of a conflict of interest, the Indemnified Person shall not settle the claim without the Indemnifying Party’s consent, which consent shall not be unreasonably withheld. Amounts paid by an Indemnified Person in a settlement entered into in compliance with this Section 8.3 shall be included in the liabilities and will losses against which the Indemnified Person is entitled to be indemnified (provided under Section 8.1 or 8.2. The parties shall cooperate in the indemnified person is so entitled) by the indemnifying party for defense of any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding. In no event will the indemnifying party be liable including making documents and personnel available for the fees interviews, depositions, hearings, trials and expenses of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction arising out of the same general allegations. The indemnifying party will not be liable for any settlement of any action, claim, or proceeding effected without the indemnifying party’s express written consentappeals, but if any action, claim, or proceeding, is settled with the indemnifying party’s express written consent, Indemnifying Party shall reimburse the indemnifying party will indemnify, defend, and hold harmless an indemnified person as provided Indemnified Person for out-of-pocket costs in this Section 7providing such cooperation.

CONFIDENTIAL TREATMENT REQUESTED. Confidential portions Execution Version Claim any legal counsel selected by the Indemnifying Party; provided that it obtains the prior written consent of this document have been redacted and have been separately filed with the CommissionIndemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding In the preceding paragraphevent the Indemnifying Party assumes the defense of a Claim, if in any action, claim, or proceeding as to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, upon the Indemnifying Party’s relevant notice the Indemnified Party shall immediately deliver to the indemnifying party’s interests or that there may be legal defenses available to Indemnifying Party all original notices and documents (including court papers) received by the indemnified person that are different from, in addition to, or inconsistent with the defenses available to the indemnifying party, the indemnified person may retain its own counsel Indemnified Party in connection with such actionthe Claim. Should the Indemnifying Party assume the defense of a Claim, claimexcept as provided in Section 13.3(c) (Right to Participate in Defense), or proceeding and will the Indemnifying Party shall not be indemnified (provided liable to the indemnified person is so entitled) by the indemnifying party Indemnified Party for any legal and other expenses reasonably subsequently incurred by such Indemnified Party in connection with investigating the analysis, defense or defending such action, claim, or proceedingsettlement of the Claim unless specifically requested and approved in writing by the Indemnifying Party. In no the event will that it is ultimately determined that the indemnifying party be liable Indemnifying Party is not obligated to indemnify, defend or hold harmless the Indemnified Party from and against the Claim, the Indemnified Party shall reimburse the Indemnifying Party for the any and all reasonable and verifiable out-of-pocket costs and expenses (including attorneys’ fees and expenses costs of more than one counsel for all indemnified persons suit) incurred by the Indemnifying Party in connection accordance with any one actionthis ARTICLE 13 (Indemnification; claim, or proceeding or Liability) in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction arising out its defense of the same general allegations. The indemnifying party will not be liable for any settlement of any action, claim, or proceeding effected without the indemnifying party’s express written consent, but if any action, claim, or proceeding, is settled with the indemnifying party’s express written consent, the indemnifying party will indemnify, defend, and hold harmless an indemnified person as provided in this Section 7Claim.

CONFIDENTIAL TREATMENT REQUESTED. Confidential portions appropriate proceedings. If any Indemnified Party desires to participate in any such defense or settlement for which the Indemnifying Party has elected, pursuant to the prior sentence to defend, or permit its Permitted Designee to defend, the Indemnified Party may do so at its sole cost and expense. The Indemnified Party shall not settle a claim or demand without the consent of this document have been redacted and have been separately filed with the CommissionIndemnifying Party, which shall not be unreasonably withheld. Notwithstanding The Indemnifying Party shall not, without the preceding paragraphprior written consent of the Indemnified Party, which shall not be unreasonably withheld, settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Subsidiary or Affiliate thereof. If the Indemnifying Party elects not to defend the Indemnified Party against a claim or demand for which the Indemnifying Party has an indemnification obligation hereunder, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand, or, if in any actionthe same shall be contested by the Indemnified Party, claim, or proceeding then that portion thereof as to which indemnification such contest is or may unsuccessful (and the reasonable costs and expenses pertaining to such contest) shall be available the liability of the Indemnifying Party hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, subject to the indemnifying party’s interests limitations set forth in this Article 9. To the extent the Indemnifying Party shall control or that there may be legal defenses available to the indemnified person that are different from, in addition to, or inconsistent with the defenses available to the indemnifying party, the indemnified person may retain its own counsel in connection with such action, claim, or proceeding and will be indemnified (provided the indemnified person is so entitled) by the indemnifying party for any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding. In no event will the indemnifying party be liable for the fees and expenses of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings participate in the same jurisdiction arising out of the same general allegations. The indemnifying party will not be liable for any defense or settlement of any actionthird party claim or demand, the Indemnified Party will give the Indemnifying Party, its counsel and any Permitted Designee (with respect to any liability for which the Indemnifying Party may have an indemnity claim pursuant to any agreement it had made with such Permitted Designee as in effect as of the date hereof), access to, during normal business hours, the property and relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party. The Indemnified Party shall use its best efforts in the defense of all such claims. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall state specifically the representation, warranty, or covenant with respect to which the claim is made, the facts giving rise to an alleged basis for the claim, or proceeding effected without and the indemnifying party’s express written consent, but if any action, amount of the liability asserted against the Indemnifying Party by reason of the claim, or proceeding, is settled with the indemnifying party’s express written consent, the indemnifying party will indemnify, defend, and hold harmless an indemnified person as provided in this Section 7.