Common use of Defense of Claims Clause in Contracts

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice to the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgment.

Defense of Claims. An Indemnified Person seeking indemnification Except as otherwise set forth in the last sentence of this Section 9.6, in connection with any claim which may give rise to indemnity under this Article IX shall give written notice to 9 resulting from or arising out of any claim or Action against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party of the facts and circumstances giving rise may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice sent at any time to the claim. In relevant Indemnitee, assume the defense of any such claim or Action, to the extent that regardthe claim or Action relates only to monetary damages and not the Transferred Assets or the ability to exploit the Transferred Assets, if any Proceeding shall be brought or asserted by any third party whichand such Indemnifying Party provides assurances, if adversely determinedreasonably satisfactory to such Indemnitee, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and the facts pertaining thereto; provided that the failure to so notify an in full if such claim or Action is decided adversely. The Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except select counsel reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control Indemnitee to conduct the defense of such Proceeding (claim or Action, shall take all steps reasonably necessary in the defense or settlement thereof and shall consult with at all times diligently and promptly pursue the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesresolution thereof. If the Indemnifying Party elects to assume and control shall have assumed the defense of a Proceedingany claim or Action in accordance with this Section 9.6, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense authorized to consent to a settlement of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect arising from, any such claim or Action, to the matter extent that the settlement or enter into any settlement with respect to judgment requires only the matter which judgment payment of monetary damages, includes no injunctive provisions or settlement does not release performance requirements of Indemnitee and includes no admission of guilt or liability. Or in the other alternative, the Indemnifying Party from all liability to the third party with respect thereto without the will seek consent of the other Party, Indemnitee (which consent shall not be unreasonably withheld or delayed). If the Indemnifying Party has so elected to assume the defense, each Indemnitee shall be entitled to participate in (it but not control) the defense of any such action, with its own counsel and, except as provided herein, at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party in the defense of any claim or Action being understood defended by the Indemnifying Party pursuant to this Section 9.6. If the Indemnifying Party does not assume the defense of any claim or Action resulting therefrom in accordance with the terms of this Section 9.6, or the Indemnifying Party does not acknowledge to the Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the Parties) or the Indemnifying Party does not provides assurances, reasonably satisfactory to such Indemnitee, that the extent to which any Indemnifying Party will be obligated financially able to pay for Damages resulting from satisfy such matter claim in full if such claim or Action is decided adversely, such Indemnitee may defend against such claim or Action in such manner as compared to it may deem reasonably appropriate at the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry cost of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentParty.

Defense of Claims. An Subject to the provisions hereinafter stated, in case any such action shall be brought against an Indemnified Person seeking indemnification under this Article IX shall give written notice to Party, the Indemnifying Party of the facts and circumstances giving rise shall be entitled to participate therein, and, to the claim. In extent that regardit shall elect by written notice delivered to the Indemnified Party promptly after receiving the aforesaid notice from such Indemnified Party, if any Proceeding shall be brought or asserted by any third party whichentitled to assume the defense thereof, if adversely determined, would entitle the with counsel reasonably satisfactory to such Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify Party. After notice from the Indemnifying Party of the same in writing, specifying in detail the basis of to such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Indemnified Party of its obligations hereunder except election to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding thereof (unless it has failed to assume the defense thereof and shall consult with the Indemnified Person with respect thereto), including the employment of appoint counsel reasonably satisfactory to the Indemnified Person and Party, in each case within a reasonable time after notice of commencement of the payment action), such Indemnifying Party shall not be liable to such Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party in connection with the defense thereof; provided, however, that if (i) there exists or shall exist a conflict of expenses; provided interest that would make it inappropriate, in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle reasonable opinion of counsel to the Indemnified Person Party, for the same counsel to full indemnity pursuant to this Article IX, represent both the Indemnified Person may elect to participate in the joint defense of Party and such Proceeding Indemnifying Party or any affiliate or associate thereof, (a "Joint Defense Proceeding"ii) for which the expenses of such joint defense will be shares equally by such parties and the employment of separate counsel shall be reasonably satisfactory to both parties. If the Indemnifying for such Indemnified Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed been authorized in writing by one of the Indemnifying Party in any connection with the defense of such action and to participate or (iii) the Indemnifying Party does not diligently defend the action after assumption of the defense in the defense thereofreasonably opinion of such Indemnified Party, but then in each case the Indemnified Party shall be entitled to retain its own counsel (who shall not be the same as the opining counsel) at the expense of such Indemnifying Party; provided, however, that no Indemnifying Party shall be responsible for the fees and expenses of such more than one separate counsel employed by (together with appropriate local counsel) for all Indemnified Parties, which, counsel, in the Indemnified Person shall be at the expense case of the Indemnified Person Parties described in Section 5(a), shall be designated by Holders of the majority-in-interest of the then outstanding Registrable Securities, and, in the case of the Indemnified Parties described in Section 5(b), shall be designated by the Company. In no event shall any Indemnifying Party be liable in respect of any amounts paid in settlement of any action unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) shall have approved the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry terms of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which such settlement; provided that such consent shall not be unreasonably withheld (it being understood that withheld. No Indemnifying Party shall, without the extent to prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party will be obligated to pay for Damages resulting is or could reasonably have been a party and indemnification could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentproceeding.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice to the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if case any Proceeding legal action shall be brought commenced or asserted by any third party which, if adversely determined, would entitle threatened (provided that in the case of a threatened legal action the Indemnified Person Party believes in good faith that an indemnifiable Loss is likely to indemnity pursuant to this Article IXoccur) against an Indemnified Party which could result in a Loss, the Indemnified Person Party shall within thirty (30) days promptly notify the Indemnifying Party of the same in writing. After receipt of any such notice, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve have the Indemnifying Party right, exercisable by written notice of its obligations hereunder except exercise to the extent such failure shall have harmed Indemnified Party promptly after receipt of the Indemnifying Party. The Indemnifying Partynotice provided for in the next preceding sentence, if it so elects, shall (A) to participate in and (B) assume (and control control) the defense of such Proceeding (action, at its own expense and shall consult with the Indemnified Person with respect thereto)its own counsel, including the employment of provided such counsel reasonably is satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesParty. If the Indemnifying Party elects to assume and control the defense of a Proceedingsuch action, it will provide notice thereof within thirty (30) days after the Indemnifying Party shall keep the Indemnified Person has given notice Party informed of the matter all material developments and if events relating to such Proceeding is not a Joint Defense Proceeding, the action. The Indemnified Person Party shall have the right to employ counsel separate from counsel employed by participate in (but not control) the Indemnifying Party in defense of any such action and to participate in the defense thereofaction, but the fees and expenses of such counsel employed for the Indemnified Party shall be at its own expense except as set forth in the following sentence. The Indemnifying Party shall bear the reasonable fees and expenses of counsel retained by the Indemnified Person Party if (i) the Indemnified Party shall be have retained such counsel due to actual or potential conflicting interests between the Indemnified Party and the Indemnifying Party, (ii) the Indemnifying Party shall not elect to assume the defense of the action, (iii) the Indemnifying Party shall not have employed counsel satisfactory to the Indemnified Party to represent the Indemnifying Party in connection with its assumption of the defense of the action within a reasonable time after notice pursuant to the first sentence of this paragraph is delivered to the effect that such action has been commenced or is threatened, or (iv) the Indemnifying Party has authorized the employment of counsel for the Indemnified Party to handle the defense of the action at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by Indemnifying Party. In no event will the Indemnifying Party in writing be liable for any settlement or (b) admission of liability with respect to any action without its prior written consent, which shall not be unreasonably withheld, but if settled with such consent, the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory shall be liable therefor, subject to the Indemnified Personlimitations set forth in this Section 9. Neither the Indemnified Person nor the The Indemnifying Party may consent not settle any liability or claim subject to the entry of any judgment with respect indemnification pursuant to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto this Section 9 without the consent of the other Indemnified Party and on any basis that does not provide for a full release of the Indemnified Party. Any participation in, or assumption of the defense of, any action by an Indemnifying Party shall be without prejudice to the right of the Indemnifying Party, which consent and shall not be unreasonably withheld (it being understood that construed as a waiver of its right to deny the extent obligation to which any Party will be obligated to pay for Damages resulting from such matter indemnify the Indemnified Party. The giving of notice, as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement above provided, of a Joint Defense Proceeding may loss, damage, cost or expense claimed to be effected without indemnifiable hereunder, to exercise the consent right, as the same is provided (and limited) herein, to participate in and assume control of both parties. If there the defense against such claim, shall be a settlement prerequisite to which any obligation to indemnify; provided, however, that the Indemnifying Party consents Indemnified Party’s rights pursuant to this Section 9 shall not be forfeited by reason of a failure to give such notice or to cooperate in the defense to the extent such failure does not have a final judgment for the plaintiff in any Proceeding, material and adverse effect on the defense of which such matter. Notwithstanding any of the Indemnifying Party elected to assumeabove, the Indemnifying Party Parent shall indemnify the Indemnified Person with respect have control of any action arising from a tax claim to the settlement or judgmentextent such claim is reflected on Parent’s tax returns.

Defense of Claims. An Indemnified Person seeking Each party entitled to indemnification under this Article IX Section 6.1 or 6.2 (the “Indemnified Party”) shall give written notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of the facts any claim as to which indemnity may be sought, and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the same in writingIndemnifying Party, specifying in detail who shall conduct the basis defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the facts pertaining thereto; Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to so notify an Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Indemnified Party of its obligations hereunder except under the Agreement unless the failure to give such notice is materially prejudicial to an Indemnified Party’s ability to defend such action. Notwithstanding the extent such failure shall have harmed foregoing, however, (i) if the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume Indemnified Party reasonably determines that there may be a conflict between the position of the Indemnified Party and control of the Indemnified Party in connection with the defense of such Proceeding (and shall consult with the action, suit, investigation, inquiry or other proceeding or that there may be legal defenses available to such Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory Party different from or in addition to those available to the Indemnified Person and Party, then counsel for the payment of expenses; provided that in the event any Proceeding Indemnified Party shall be brought or asserted entitled to conduct a defense to the extent reasonably determined by any third party which, if adversely determined, would not entitle such counsel to be necessary to protect the interest of the Indemnified Person to full indemnity pursuant to this Article IXParty, and (ii) in any event, the Indemnified Person may elect Party shall be entitled to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally have counsel chosen by such parties and Indemnified Party participate in, but not to conduct, the employment of counsel shall be reasonably satisfactory to both partiesdefense. If the Indemnifying Party elects to assume and control No Indemnified Party, in the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in claim or litigation, shall, except with the defense thereofconsent of each Indemnified Party, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement that does not include as a unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents claim or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentlitigation.

Defense of Claims. An Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the “Indemnified Person seeking indemnification under this Article IX Party”) shall give promptly notify the other party (the “Indemnifying Party”) in writing of the claim and, when known, the facts constituting the basis for such claim. The Indemnifying Party may, upon written notice to the Indemnifying Indemnified Party within 30 calendar days of receipt of the facts and circumstances giving rise to notice specified in the claim. In that regardfirst sentence of this paragraph, assume the defense of any such claim if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party acknowledges to the Indemnified Party the Indemnified Party’s right to indemnify pursuant hereto in respect of the same in writing, specifying in detail the basis entirety of such claim. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel acceptable to the Indemnified Party to conduct the defense of such claim, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim and in accordance with this Section 13(b), the facts pertaining theretoIndemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Indemnified Party; provided provided, however, that (i) the failure Indemnifying Party shall pay or cause to so notify an be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (ii) the Indemnifying Party shall not relieve be authorized to encumber any of the Indemnifying assets of the Indemnified Party of its obligations hereunder except or to agree to any restriction that would apply to the extent Indemnified Party or to its conduct of business; and (iii) a condition to any such failure settlement shall have harmed be a complete release of the Indemnified Party with respect to such claim which contains no admission of liability on the part of the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such action, with its own counsel and at the expense of the Indemnifying Party. The Indemnified Party shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party, if it so elects, shall assume and control Party in the defense of such any claim or Proceeding (and shall consult with being defended by the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity Indemnifying Party pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesSection 14(b). If the Indemnifying Party elects to does not assume and control the defense of a Proceedingany claim resulting therefrom in accordance with the terms of this Section 13(b), it will provide notice thereof within thirty (30) days after the Indemnified Person has given Party may defend against such claim in such manner as it may deem appropriate, including settling such claim after giving notice of the matter and if same to the Indemnifying Party, on such Proceeding is not a Joint Defense Proceeding, terms as the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentdeem appropriate.

Defense of Claims. An Indemnified Person seeking If a party hereto seeks indemnification under this Article IX Section 5, such party (the “Indemnified Party”) shall give written notice (“Notice of Loss”) to the other party (the “Indemnifying Party Party”) of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding suit, action, claim, liability or obligation (a “Proceeding”) shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Party to indemnity pursuant to this Article IXSection 5, the Indemnified Person Party shall within thirty (30) 30 days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided provided, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person Party with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and the payment of expenses; provided provided, however, that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person Party to full indemnity pursuant to this Article IXSection 5, the Indemnified Person Party may elect to participate in the a joint defense of such Proceeding (a "“Joint Defense Proceeding"”) for which the expenses of such joint defense will be shares shared equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) 30 days after the Indemnified Person Party has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person Party shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing writing, or (bii) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Personcounsel. Neither the Indemnified Person nor the The Indemnifying Party may consent to the entry shall not be liable for any settlement of any judgment with respect Proceeding, the defense of which it has elected to the matter or enter into any assume, which settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto is effected without the written consent of the other Indemnifying Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the written consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party has elected to assume, the Indemnifying Party shall indemnify the Indemnified Person Party with respect to the settlement or judgment. If the Indemnifying Party elects to assume and control the defense or in the event of a Joint Defense Proceeding, the Indemnified Party shall take all reasonable efforts necessary to assist the Indemnifying Party in such defense.

Defense of Claims. An Indemnified Person seeking indemnification (a) In connection with any claim which may give rise to indemnity under this Article IX shall give resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party may, subject to Section 9.04(b), assume the defense of any such claim or Proceeding (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, if all Indemnifying Parties with respect to such claim or Proceeding jointly acknowledge to the Indemnitee its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, reasonably satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. Prior to the assumption by an Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if defense of any Proceeding shall be brought claim or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IXProceeding, the Indemnified Person shall within thirty (30) days notify Indemnitee may make such appearances and filings with respect thereto as the Indemnitee reasonably determines to be necessary or appropriate. If the Indemnifying Party Parties assume the defense of the same in writing, specifying in detail the basis of any such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve or Proceeding, the Indemnifying Party of its obligations hereunder except Parties shall select counsel reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control Indemnitee to conduct the defense of such Proceeding (claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall consult with at all times diligently and promptly pursue the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesresolution thereof. If the Indemnifying Party elects to assume and control Parties shall have assumed the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such any claim or Proceeding is not a Joint Defense Proceedingin accordance with this Section 9.04, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person Parties shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment with respect to the matter arising from, any such claim or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto Proceeding, without the prior written consent of such Indemnitee; PROVIDED, HOWEVER, that the other PartyIndemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; PROVIDED, which consent FURTHER, that the Indemnifying Parties shall not be unreasonably withheld (it being understood authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that the extent would apply to which any Party will be obligated Indemnitee or to pay for Damages resulting from its conduct of business; and PROVIDED, FURTHER, that a condition to any such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement Affiliates, officers, employees, consultants and agents with respect to such matterclaim. Subject to Section 9.04(b); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there , such Indemnitee shall be a settlement entitled to which the Indemnifying Party consents or a final judgment for the plaintiff participate in any Proceeding, (but not control) the defense of which any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party elected to assume, Parties in the defense of any claim or Proceeding being defended by the Indemnifying Party shall indemnify Parties pursuant to this Section 9.04. If the Indemnified Person Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with respect to the settlement terms of this Section 9.04(a), such Indemnitee may defend against such claim or judgmentProceeding.

Defense of Claims. An Indemnified Person seeking If a party hereto seeks indemnification under this Article IX Section 8.1, such party (the "Indemnified Party") shall give written notice to the other party (the "Indemnifying Party Party") of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding suit, action, claim, liability or obligation (a "Proceeding") shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Party to indemnity pursuant to this Article IXSection 8.1, the Indemnified Person Party shall within thirty (30) 30 days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person Party with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and the payment of expenses; provided provided, however, that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person Party to full indemnity pursuant to this Article IXSection 8.1, the Indemnified Person Party may elect to participate in the a joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares shared equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) 30 days after the Indemnified Person Party has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person Party shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (bii) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Personcounsel. Neither the Indemnified Person nor the The Indemnifying Party may consent to the entry shall not be liable for any settlement of any judgment with respect Proceeding, the defense of which it has elected to the matter or enter into any assume, which settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto is effected without the written consent of the other Indemnifying Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the written consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party has elected to assume, the Indemnifying Party shall indemnify the Indemnified Person Party with respect to the settlement or judgment. If the Indemnifying Party elects to assume and control the defense or in the event of a Joint Defense Proceeding, the Indemnified Party shall take all reasonable efforts necessary to assist the Indemnifying Party in such defense.

Defense of Claims. An In the event that any claim is asserted against a party which is entitled to indemnification hereunder as an Indemnified Person seeking indemnification under this Article IX Party, the Indemnified Party shall promptly after learning of such claim, notify the Indemnifying Party thereof in writing; provided, however, that the failure of the Indemnified Party to give prompt notice of such claim as aforesaid shall not relieve the obligation of the Indemnifying Party with respect to such claim, except to the extent that the Indemnifying Party is prejudiced by the failure of the Indemnified Party to provide such notice. The Indemnifying Party shall have the right, by giving written notice to the Indemnifying Indemnified Party within ten (10) calendar days after receipt from the Indemnified Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted notice of such claim (which notice must include an acceptance of indemnification responsibility for such claim by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party in favor of the same in writingIndemnified Party), specifying in detail to conduct at its expense the basis of defense against such claim and in its own name, or, if the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall fail to give such notice, it shall be deemed to have elected not relieve to conduct the Indemnifying defense of the subject claim, and in such event the Indemnified Party of its obligations hereunder except to the extent such failure shall have harmed the right to conduct such defense and to compromise and settle the claim without prior consent of the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in In the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If that the Indemnifying Party elects to assume and control conduct the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingsubject claim, the Indemnified Person Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested by him, all at the expense of the Indemnifying Party, and the Indemnified Party shall have the right at its expense to participate in the defense, provided that the Indemnified Party shall have the right to employ counsel separate from counsel employed compromise and settle the claim only with the prior written consent of the Indemnifying Party. No legal proceeding in which the Indemnified Party is named as a party shall be settled by the Indemnifying Party in any without the Indemnified Party’s prior written consent unless such action settlement or compromise (a) affects no substantive rights of the Indemnified Party, (b) involves a complete release of and to participate in the defense thereof, but the fees and expenses no admission of such counsel employed fault by the Indemnified Person Party, and (c) creates no obligations or liabilities for the Indemnified Party. Any judgment entered or settlement agreed upon in the manner provided herein shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by binding upon the Indemnifying Party in writing or (b) the Indemnifying Party has failed Party, and shall conclusively be deemed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment be an obligation with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Indemnified Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected is entitled to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentindemnification hereunder.

Defense of Claims. An Indemnified (a) (i) If any Buyer Indemnitee receives notice of the assertion or commencement of any claim, action or proceeding made or brought by any Person seeking who is not a Party or an affiliate of a Party (a "Third Party Claim") with respect to which indemnification under this Article IX is to be sought from the Seller and DQE, the Buyer Indemnitee shall give the Seller and DQE reasonably prompt written notice thereof, but in any event such notice shall not be given later than twenty (20) calendar days after the Buyer Indemnitee's receipt of written notice of such Third Party Claim. Such written notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Buyer Indemnifiable Loss that has been or may be sustained by the Buyer Indemnitee. The Seller and DQE will have the right to participate in or, by giving written notice to the Indemnifying Party of the facts and circumstances giving rise Buyer Indemnitee, to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense of any Third Party Claim by the Seller's own counsel, the cost for which shall be borne by the Seller and employ counsel reasonably satisfactory DQE to the Indemnified Person. Neither extent that Buyer Indemnifiable Losses exceed the Indemnified Person nor Indemnity Basket and shall, to such extent, be taken into account in calculating the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent aggregate amount of the other Party, which consent Seller's and DQE's liability for Buyer Indemnifiable Losses under the Indemnity Cap. The Buyer Indemnitee shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from cooperate in good faith in such matter as compared to the other Party shall be considered in determining whether it is reasonable for defense at such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesBuyer Indemnitee's own expense. If there shall be a settlement the Seller and DQE elect not to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, assume the defense of which the Indemnifying any Third Party elected to assumeClaim, the Indemnifying Buyer Indemnitee may compromise or settle such Third Party shall indemnify Claim over the Indemnified Person with respect to objection of the Seller and DQE, which settlement or judgmentcompromise shall conclusively establish the Seller's and DQE's liability pursuant to this Agreement.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice to This section sets forth, among other things, those circumstances in which the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure Indemnitor shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects right to assume and control the defense of an indemnified Third Party Claim and those in which the Indemnitee shall have such right. Upon receipt of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense ProceedingClaim Notice from an Indemnitee with respect to any Third Party Claim, the Indemnified Person Indemnitor shall have the right to assume and control the defense thereof (and any related settlement negotiations) with counsel selected by the Indemnitor and reasonably satisfactory to such Indemnitee (the "Indemnitor's Counsel"). The Indemnitee shall cooperate in all reasonable respects in such defense. The Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party at such Indemnitee's expense in any such action or claim and to participate in the defense thereof, including, without limitation, in any situation in which one or more defenses or one or more counterclaims available to the Indemnitee conflict with one or more defenses or one or more counterclaims available to the Indemnitor. Anything to the contrary in this Section 8.4 notwithstanding, the Indemnitor shall not be entitled to control the defense of such Third Party Claim (but shall be entitled to participate at its own expense in the defense thereof) and the Indemnitee shall have the right to assume and control the defense or settlement thereof with counsel of its own choosing reasonably satisfactory to the Indemnitor (reasonable fees and expenses of such counsel employed by the Indemnified Person shall be being at the expense of the Indemnified Person unless Indemnitor), if: (ai) the employment thereof has been specifically authorized by Indemnitor does not notify the Indemnifying Party in writing or Indemnitee within thirty (b30) days after receipt of the Indemnifying Party has failed Claim Notice of its intention to assume the defense and employ counsel reasonably satisfactory to of such Third Party Claim, (ii) such Third Party Claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Person. Neither Indemnitee which, if successful, could result in a Material Adverse Effect upon the Indemnified Person nor the Indemnifying Party may consent to the entry business, financial condition, results of any judgment with respect to the matter operations or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent assets of the other PartyIndemnitee, which consent shall not be unreasonably withheld or (it being understood that iii) the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it Indemnitor does not, or is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceedingunable to, fund the defense of which such Third Party Claim in the Indemnifying manner requested by Indemnitor's Counsel. With respect to any settlement of such Third Party elected to assumeClaim, the Indemnifying Party Indemnitee shall indemnify the Indemnified Person with respect send a written notice to the Indemnitor of any proposed settlement or of any such claim, which settlement the Indemnitor may reject, in its reasonable judgment, within thirty (30) days of receipt of such settlement. Failure to reject such notice within such thirty-day period shall be deemed an acceptance of such notice and proposed settlement.

Defense of Claims. An Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the "Indemnified Person seeking indemnification under this Article IX Party") shall give promptly notify the other party (the "Indemnifying Party") in writing of the claim and, when known, the facts constituting the basis for such claim. The Indemnifying Party may, upon written notice to the Indemnifying Indemnified Party within 30 calendar days of receipt of the facts and circumstances giving rise to notice specified in the claim. In that regardfirst sentence of this paragraph, assume the defense of any such claim if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party acknowledges to the Indemnified Party the Indemnified Party's right to indemnify pursuant hereto in respect of the same in writing, specifying in detail the basis entirety of such claim. If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall select counsel acceptable to the Indemnified Party to conduct the defense of such claim, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim and in accordance with this Section 13(b), the facts pertaining theretoIndemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Indemnified Party; provided provided, however, that (i) the failure Indemnifying Party shall pay or cause to so notify an be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (ii) the Indemnifying Party shall not relieve be authorized to encumber any of the Indemnifying assets of the Indemnified Party of its obligations hereunder except or to agree to any restriction that would apply to the extent Indemnified Party or to its conduct of business; and (iii) a condition to any such failure settlement shall have harmed be a complete release of the Indemnified Party with respect to such claim which contains no admission of liability on the part of the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such action, with its own counsel and at the expense of the Indemnifying Party. The Indemnified Party shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party, if it so elects, shall assume and control Party in the defense of such any claim or Proceeding (and shall consult with being defended by the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity Indemnifying Party pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesSection 14(b). If the Indemnifying Party elects to does not assume and control the defense of a Proceedingany claim resulting therefrom in accordance with the terms of this Section 13(b), it will provide notice thereof within thirty (30) days after the Indemnified Person has given Party may defend against such claim in such manner as it may deem appropriate, including settling such claim after giving notice of the matter and if same to the Indemnifying Party, on such Proceeding is not a Joint Defense Proceeding, terms as the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentdeem appropriate.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice to the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if case any Proceeding legal action shall be brought commenced or asserted by any third party which, if adversely determined, would entitle threatened (provided that in the case of a threatened legal action the Indemnified Person Party believes in good faith that an indemnifiable Loss is likely to indemnity pursuant to this Article IXoccur) against an Indemnified Party that could result in a Loss, the Indemnified Person Party shall within thirty (30) days promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an . The Indemnifying Party shall not relieve have the Indemnifying Party right, exercisable by written notice promptly after receipt of its obligations hereunder except the notice, (A) to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall participate in and (B) assume (and control control) the defense of such Proceeding (the action, at its own expense and shall consult with the Indemnified Person with respect thereto)its own counsel, including the employment of provided counsel is reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesParty. If the Indemnifying Party elects to assume and control the defense of a Proceedingthe action, it will provide notice thereof within thirty (30) days after the Indemnifying Party shall keep the Indemnified Person has given notice Party informed of the matter all material developments and if such Proceeding is not a Joint Defense Proceeding, events and the Indemnified Person Party shall have the right to employ counsel separate from counsel employed by participate in (but not control) the defense of the action. However, the Indemnified Party shall bear its own expenses of participation except as set forth in the following sentence. The Indemnifying Party in any such action and to participate in shall bear the defense thereof, but the reasonable fees and expenses of such counsel employed retained by the Indemnified Person shall be at the expense of Party if (i) the Indemnified Person unless (a) Party shall have retained counsel due to actual or potential conflicting interests between the employment thereof has been specifically authorized by Indemnified Party and the Indemnifying Party in writing or Party, (bii) the Indemnifying Party has failed shall not elect to assume the defense and employ of the action, (iii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor Party, or (iv) the Indemnifying Party may consent has authorized the employment of counsel for the Indemnified Party to handle the entry defense of the action at the expense of the Indemnifying Party. In no event will the Indemnifying Party be liable for any judgment settlement or admission of liability with respect to any action without its prior written consent, which shall not be unreasonably withheld, but if settled with this consent, the matter Indemnifying Party shall be liable for payment of the settlement or enter into any settlement with respect judgment amount, subject to the matter which judgment limitations set forth in this Section 7. The Indemnifying Party may not settle any liability or settlement does not release the other Party from all liability claim subject to the third party with respect thereto indemnification pursuant to this Section 7 without the consent of the other Indemnified Party and on any basis that does not provide for a full release of the Indemnified Party. Any participation in, or assumption of the defense of, any action by an Indemnifying Party shall be without prejudice to the right of the Indemnifying Party, which consent and shall not be unreasonably withheld (it being understood that construed as a waiver of its right to deny the extent obligation to which any Party will be obligated to pay for Damages resulting from such matter as compared to indemnify the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry Indemnified Party. The giving of any judgment or settlement with respect to such matter); provided that no settlement notice of a Joint Defense Proceeding may loss, damage, cost or expense claimed to be effected without the consent of both parties. If there indemnifiable shall be a settlement prerequisite to which any obligation to indemnify. However, the Indemnifying Party consents Indemnified Party’s rights pursuant to this Section 7 shall not be forfeited by reason of a failure to give the required notice or to cooperate in the defense to the extent the failure does not have a final judgment for the plaintiff in any Proceeding, material and adverse effect on the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentmatter.

Defense of Claims. An (i) The Purchaser, at its own expense and through counsel chosen by it, may elect to defend against, negotiate, settle or otherwise deal with any Claim which relates to any Losses; and if it so elects, it shall, within 30 (thirty) Business Days after receiving notice of Claim (or sooner, if the nature of such Claim so requires), notify the Indemnified Person seeking indemnification Party of its intent to do so, and such Indemnified Party shall cooperate fully in the defense, negotiation or settlement of any such Claim. After notice from the Purchaser to the Indemnified Parties of its election to defend against, negotiate, settle or otherwise deal with any such Claim, Purchaser shall not be liable to the Indemnified Parties under this Article IX Agreement for any legal or other expenses subsequently incurred by the Indemnified Parties in connection with the defense, negotiation or settlement thereof; provided, however, that all Indemnified Parties shall give written notice have the right to collectively employ one (and only one) counsel to represent such Indemnified Parties in respect of such Claim hereunder (which counsel shall be reasonably acceptable to the Indemnifying Party Purchaser) if, in the reasonable opinion of counsel to the Indemnified Parties, a conflict of interest between the Indemnified Parties and the Purchaser may exist in respect of such Claim that would make such separate representation advisable, and in that event (x) the reasonable fees and expenses of such separate counsel shall be paid by the Purchaser and (y) each of the facts Purchaser and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Parties shall have the right to indemnity pursuant direct its own defense in respect of such Claim; provided, further, that the Purchaser shall not be required to this Article IXpay for more than one additional counsel (excluding local counsel) for Indemnified Parties in connection with any Claim hereunder. The parties hereto agree to cooperate fully with each other in connection with any Claims hereunder. If the Purchaser elects not to defend against, negotiate, settle or otherwise deal with such Claim, or fails to notify the Indemnified Person shall Parties of its election within thirty (30) days notify Business Days after request by the Indemnifying Party Indemnified Parties to assume the defense of any such Claim, the same in writing, specifying in detail the basis Indemnified Parties may assume control of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with Claim at Purchaser's expense. Notwithstanding anything in this Section 2.6 to the contrary, neither the Purchaser nor the Indemnified Person with respect thereto)Parties may, including without the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice prior written consent of the matter and if such Proceeding is not a Joint Defense Proceedingother party, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in settle or compromise any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing Claim or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may permit a default or consent to the entry of any judgment with respect unless the claimant and such party provide to the matter or enter into any settlement with respect to the matter which judgment or settlement does not such other party an unqualified written release the other Party from all liability in respect of such Claim, and such settlement or compromise does not materially and adversely impair the ability of the Indemnified Parties to conduct their respective businesses, and does not contain any admission of wrongdoing on the part of any of the Indemnified Parties. Notwithstanding the foregoing, if a settlement offer solely for money damages is made by the applicable third party with respect thereto without claimant, and the consent Purchaser notifies the Indemnified Parties in writing of the other PartyPurchaser's willingness to accept the settlement offer and pay the amount called for by such offer, which consent shall not be unreasonably withheld (it being understood that and the extent Indemnified Parties decline to which any Party will be obligated accept such offer, the Indemnified Parties may continue to pay for Damages resulting from contest such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry Claim, free of any judgment or settlement participation by the Purchaser, and the amount of any ultimate liability with respect to such matter); provided Claim that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there Purchaser has an obligation to pay hereunder shall be a limited to the lesser of (A) the amount of the settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify offer that the Indemnified Person Parties declined to accept plus the Losses of the Indemnified Parties relating to such Claim through the date of its rejection of the settlement offer or (B) the aggregate Losses of the Indemnified Parties with respect to the settlement or judgmentsuch Claim.

Defense of Claims. An Indemnified (i) If any Buyer Indemnitee receives notice of the assertion or commencement of any claim, action or proceeding made or brought by any Person seeking who is neither a party to this Agreement nor an affiliate of a party to this Agreement (a “Third Party Claim”) with respect to which indemnification under this Article IX is to be sought from the Seller, the Buyer Indemnitee shall give the Seller reasonably prompt written notice thereof, but in any event such notice shall not be given later than forty-five (45) calendar days after the Buyer Indemnitee’s receipt of written notice of such Third Party Claim. To the extent known, such written notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Buyer Indemnifiable Loss that has been or may be sustained by the Buyer Indemnitee. The Seller will have the right to participate in or, by giving written notice to the Indemnifying Party of the facts and circumstances giving rise Buyer Indemnitee, to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory of any Third Party Claim by the Seller’s own counsel, the cost for which shall be borne by the Seller to the Indemnified Person. Neither extent that Buyer Indemnifiable Losses exceed the Indemnified Person nor Indemnity Basket and shall, to such extent, be taken into account in calculating the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent aggregate amount of the other Party, which consent Seller’s liability for Buyer Indemnifiable Losses under the Indemnity Cap. The Buyer Indemnitee shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from cooperate in good faith in such matter as compared to the other Party shall be considered in determining whether it is reasonable for defense at such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesBuyer Indemnitee’s own expense. If there shall be a settlement the Seller elects not to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, assume the defense of which the Indemnifying any Third Party elected to assumeClaim, the Indemnifying Buyer Indemnitee may compromise or settle such Third Party shall indemnify Claim over the Indemnified Person with respect to objection of the Seller, which settlement or judgmentcompromise shall conclusively establish the Seller’s liability pursuant to this Agreement.

Defense of Claims. An Each Indemnified Person seeking indemnification under this Article IX shall give written notice Party agrees to the Indemnifying Party notify Hertz of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall claim made against it for which Hertz may be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity liable pursuant to this Article IXAgreement and, the Indemnified Person if Hertz requests, to contest or allow Hertz to contest such claim. If any Operating Lease Event of Default shall within thirty (30) days notify the Indemnifying Party of the same in writinghave occurred and be continuing, specifying in detail the basis of such claim no contest shall be required, and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party any contest which has begun shall not relieve be required to be continued to be pursued, unless arrangements to secure the Indemnifying Party payment of its Hertz’s obligations hereunder except pursuant to the extent Leases and to this Agreement have been made and such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel arrangements are reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person Parties. Hertz may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in settle any such action and to participate in claim with the defense thereof, but the fees and expenses of such counsel employed by the related Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party’s consent, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party withheld. Hertz will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify inform the Indemnified Person of any such claim and of the defense thereof and will provide copies of material documents relating to any such claim or defense to such Indemnified Person upon request. Such Indemnified Person may participate in any such defense at its own expense provided such participation does not interfere with respect Hertz’s assertion of such claim or defense. Hertz agrees that no Indemnified Person will be liable to Hertz for any claim caused directly or indirectly by the settlement inadequacy of any Vehicle leased by Hertz for any purpose or judgmentany deficiency or defect therein or the use or maintenance thereof or any repairs, servicing or adjustments thereto or any delay in providing or failure to provide such repairs, servicing or adjustments or any interruption or loss of service or use thereof or any loss of business, all of which shall be the risk and responsibility of Hertz. The rights and indemnities of each Indemnified Person hereunder are expressly made for the benefit of, and will be enforceable by, each Indemnified Person notwithstanding the fact that such Indemnified Person is either no longer a party to (or entitled to receive the benefits of) this Agreement, or was not a party to (or entitled to receive the benefits of) this Agreement at its outset. Except as otherwise set forth herein, nothing herein shall be deemed to require Hertz to indemnify either Lessor for any of such Lessor’s acts or omissions which constitute gross negligence or willful misconduct. This general indemnity shall not affect any claims of the type discussed above which Hertz may have against the Manufacturer.

Defense of Claims. An Indemnified Person seeking indemnification (a) In connection with any claim which may give rise to indemnity under this Article IX shall give resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or Proceeding if all Indemnifying Party of the facts and circumstances giving rise Parties with respect to such claim or Proceeding jointly acknowledge to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Indemnitee its right to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party hereto in respect of the same in writing, specifying in detail the basis entirety of such claim (as such claim may have been modified through written agreement of the parties) and the facts pertaining thereto; provided provide assurances, reasonably satisfactory to such Indemnitee, that the failure Indemnifying Parties will be financially able to so notify an Indemnifying Party shall not relieve satisfy such claim in full if such claim or Proceeding is decided adversely. If the Indemnifying Party Parties assume the defense of its obligations hereunder except to the extent any such failure shall have harmed claim or Proceeding, the Indemnifying Party. The Indemnifying Party, if it so elects, Parties shall assume and control select counsel reasonably acceptable to such Indemnitee to conduct the defense of such Proceeding (claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall consult with at all times reasonably diligently and promptly pursue the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesresolution thereof. If the Indemnifying Party elects to assume and control Parties shall have assumed the defense of any claim or Proceeding in accordance with this Section 9.05, the Indemnifying Parties shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, it will provide notice thereof within thirty (30) days after with the Indemnified Person has given notice consent of the matter Indemnitee, which consent will be not unreasonably withheld or delayed; provided, that no such consent shall be required from such Indemnitee if the Indemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided, further, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, officers, employees and if named as a defendant, consultants and agents with respect to such Proceeding is not a Joint Defense Proceeding, the Indemnified Person claim. Each Indemnitee shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and be entitled to participate in the defense thereofof any such action at its own cost and expense. Each Indemnitee shall, but and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the fees and expenses Indemnifying Parties in the defense of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized any claim or Proceeding being defended by the Indemnifying Party in writing or (b) the Indemnifying Party has failed Parties pursuant to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentthis Section 9.05.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice The Lessor agrees to notify the Indemnifying Party Lessee of any claim made against it for which the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall Lessee may be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity liable pursuant to this Article IXSection 16 and, if the Indemnified Person Lessee requests, to contest or allow the Lessee to contest such claim. If any Lease Event of Default shall within thirty (30) days notify have occurred and be continuing, no contest shall be required, and any contest which has begun shall not be required to be continued to be pursued, unless arrangements to secure the Indemnifying Party payment of the same in writing, specifying in detail the basis of Lessee’s obligations pursuant to this Section 16 hereunder have been made and such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel arrangements are reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding Lessor. The Lessor shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in settle any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto claim without the consent of the other PartyLessee’s consent, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry withheld. Defense of any judgment or settlement with respect claim referred to such matter); provided that no settlement of a Joint Defense Proceeding in this Section 16 for which indemnity may be effected without required shall, at the consent option and request of both partiesthe Indemnified Person, be conducted by the Lessee or the Guarantor, as applicable. If there shall be a settlement to which The Lessee or the Indemnifying Party consents or a final judgment for Guarantor, as the plaintiff in any Proceedingcase may be, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify will inform the Indemnified Person of any such claim and of the defense thereof and will provide copies of material documents relating to any such claim or defense to such Indemnified Person upon request. Such Indemnified Person may participate in any such defense at its own expense; provided such participation does not interfere with respect the Lessee’s or the Guarantor’s assertion of such claim or defense. The Lessee and the Guarantor agree that no Indemnified Person will be liable to the settlement Lessee or judgmentthe Guarantor, as applicable, for any claim caused directly or indirectly by the inadequacy of any Group I Truck leased for any purpose or any deficiency or defect therein or the use or maintenance thereof or any repairs, servicing or adjustments thereto or any delay in providing or failure to provide such repairs, servicing or adjustments or any interruption or loss of service or use thereof or any loss of business, all of which shall be the risk and responsibility of the Lessee or the Guarantor. The rights and indemnities of each Indemnified Person hereunder are expressly made for the benefit of, and will be enforceable by, each Indemnified Person notwithstanding the fact that such Indemnified Person is either no longer a party to (or entitled to receive the benefits of) this Agreement, or was not a party to (or entitled to receive the benefits of) this Agreement at its outset. Except as otherwise set forth herein, nothing herein shall be deemed to require the Lessee or the Guarantor to indemnify the Lessor for any of the Lessor’s acts or omissions which constitute gross negligence or willful misconduct. This general indemnity shall not affect any claims of the type discussed above which the Lessee or the Guarantor may have against the manufacturer.

Defense of Claims. An Indemnified (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person seeking or Governmental Entity that is not a party to this Agreement (a “Third Party Claim”) against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 10 calendar days after receipt of notice of such Third Party Claim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article IX XV to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall give be entitled, upon written notice to the Indemnifying Party of Indemnitee, to assume the facts investigation and circumstances giving rise to the claimdefense thereof. In that regard, if any Proceeding shall be brought Whether or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume the investigation and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingany Third Party Claim, the Indemnified Person Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party in writing or Party, (bii) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory of such Third Party Claim within a reasonable time after receipt of notice thereof, or (iii) the named parties to the Indemnified Person. Neither the Indemnified Person nor proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may consent be available to the entry of any judgment Indemnitee that are not available to or are in conflict with respect those available to the matter or enter into any settlement with respect to Indemnifying Party. Notwithstanding the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assumeforegoing, the Indemnifying Party shall indemnify not be liable for the fees and disbursements of more than one counsel for all Indemnified Person Parties in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant (which offer provides for a full and unconditional release of the Indemnitee), and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party’s willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (A) the amount of the settlement offer that the Indemnitee declined to accept plus the Indemnifiable Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or judgment(B) the aggregate Indemnifiable Losses of the Indemnitee with respect to such claim.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice The Lessor agrees to notify the Indemnifying Party Lessee of any claim made against it for which the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall Lessee may be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity liable pursuant to this Article IXSection 16 and, if the Indemnified Person Lessee re- quests, to contest or allow the Lessee to contest such claim. If any Finance Lease Event of Default shall within thirty (30) days notify have occurred and be continuing, no contest shall be required, and any contest which has begun shall not be required to be continued to be pursued, unless arrangements to secure the Indemnifying Party payment of the same in writing, specifying in detail the basis of Lessee's obligations pursuant to this Section 16 hereunder have been made and such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel arrangements are reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding Lessor. The Lessor shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in settle any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto claim without the consent of the other PartyLessee's consent, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry withheld. Defense of any judgment or settlement with respect claim referred to such matter); provided that no settlement of a Joint Defense Proceeding in this Section 16 for which indemnity may be effected without required shall, at the consent option and request of both partiesthe Indemnified Person, be conducted by the Lessee or the Guarantor, as applicable. If there shall be a settlement to which The Lessee or the Indemnifying Party consents or a final judgment for Guarantor, as the plaintiff in any Proceedingcase may be, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify will inform the Indemnified Person of any such claim and of the defense thereof and will provide copies of material documents relating to any such claim or defense to such Indemnified Person upon request. Such Indemnified Person may participate in any such defense at its own expense provided such participation does not interfere with respect the Lessee's or the Guarantor's assertion of such claim or defense. The Lessee and the Guarantor agree that no Indemnified Person will be liable to the settlement Lessee or judgmentthe Guarantor, as applicable, for any claim caused directly or indirectly by the inadequacy of any Vehicle for any purpose or any deficiency or defect therein or the use or maintenance thereof or any repairs, servicing or adjustments thereto or any delay in providing or failure to provide such repairs, servicing or adjustments or any interruption or loss of service or use thereof or any loss of business, all of which shall be the risk and responsibility of the Lessee or the Guarantor. The rights and indemnities of each Indemnified Person hereunder are expressly made for the benefit of, and will be enforceable by, each Indemnified Person notwithstanding the fact that such Indemnified Person is either no longer a party to (or entitled to receive the benefits of) this Agreement, or was not a party to (or entitled to receive the benefits of) this Agreement at its outset. Except as otherwise set forth herein, nothing herein shall be deemed to require the Lessee or the Guarantor to indemnify the Lessor for any of the Lessor's acts or omissions which constitute gross negligence or willful misconduct. This general indemnity shall not affect any claims of the type discussed above which the Lessee or the Guarantor may have against the Manufacturer.

Defense of Claims. An Indemnified Person seeking Any Party making a claim for indemnification under this Article IX Section 7.2 (an “Indemnitee”) shall give notify the indemnifying Party (an “Indemnitor”) of the claim in writing and, if by a third party, promptly after receiving written notice to the Indemnifying Party of the facts and circumstances giving rise to any action, lawsuit, proceeding, investigation or other claim against it; and, in all events, describing the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty amount thereof (30) days notify the Indemnifying Party of the same in writingif known and quantifiable), specifying in detail and the basis of such claim and the facts pertaining theretothereof; provided that the failure to so notify an Indemnifying Party Indemnitor shall not relieve the Indemnifying Party Indemnitor of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have harmed caused the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") damages for which the expenses of Indemnitor is obligated to be greater than such joint defense will be shares equally by damages would have been had the Indemnitee given the Indemnitor prompt notice hereunder. Any Indemnitor shall defend such parties action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and (subject to the employment of counsel limitations set forth below) shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ thereof by appointing an AV rated counsel experienced in the subject matter of such claim reasonably satisfactory acceptable to the Indemnified Person. Neither Indemnitee (and in connection therewith, if the Indemnified Person nor action, lawsuit, proceeding, investigation or other claim involves Intellectual Property issues, then the Indemnifying Party may consent parties shall select, unless they are both unavailable, one of: Xxxx Xxxxxxxxx, now of Xxxxxx Xxxx and Xxxxxxxx LLP, or Xxxxx Xxxxx now of Xxxxxxxx & Xxxxx LLP) to be the lead counsel in connection with such defense; provided further that, as a prior condition to the entry Indemnitor assuming control of such defense, the Indemnitor must: (x) verify to the Indemnitee in writing that such Indemnitor shall be fully responsible (with no reservation of any judgment with respect rights) for all Losses relating to such claim for indemnification and that it is and will provide full indemnification (whether or not otherwise required hereunder) to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement Indemnitee with respect to such matter); provided action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder and (y) confirm that no settlement it agrees that it unconditionally guarantees the payment and performance of a Joint Defense Proceeding any liability or obligation which may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person arise with respect to the settlement such action, lawsuit, proceeding or judgment.investigation; and provided further, that:

Defense of Claims. An Indemnified Person seeking (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any Action by any entity that is not a party to this Agreement or an Affiliate of such a party (a "Third Party Claim") against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party, and the Stockholders' Representative if applicable, reasonably prompt written notice thereof; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article IX to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall give be entitled, upon written notice to the Indemnifying Party of Indemnitee, to assume the facts investigation and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought Indemnitee. Whether or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume the investigation and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingany Third Party Claim, the Indemnified Person Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party in writing or Party, (bii) the Indemnifying Party has failed to assume the defense and employ of such Third Party Claim within reasonable time after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee, or (iii) the Indemnified Person. Neither named parties to the Indemnified Person nor proceeding in which such Action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may consent be available to the entry of any judgment Indemnitee that are in conflict with respect those available to the matter or enter into any settlement with respect to Indemnifying Party. Notwithstanding the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assumeforegoing, the Indemnifying Party shall indemnify not be liable for the Indemnified Person fees and disbursements of more than one counsel for all Indemnitees in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof the complete and general release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (i) the amount of the settlement offer that the Indemnitee declined to accept plus the Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or judgment(ii) the aggregate Losses of the Indemnitee with respect to such claim.

Defense of Claims. An Indemnified Person seeking If a party hereto seeks indemnification under this Article IX Section 7, such party (the “Indemnified Party”) shall give written notice (“Notice of Loss”) to the other party (the “Indemnifying Party Party”) of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding suit, action, claim, liability or obligation (a “Proceeding”) shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Party to indemnity pursuant to this Article IXSection 7, the Indemnified Person Party shall within thirty (30) 30 days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided provided, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person Party with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and the payment of expenses; provided provided, however, that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person Party to full indemnity pursuant to this Article IXSection 7, the Indemnified Person Party may elect to participate in the a joint defense of such Proceeding (a "“Joint Defense Proceeding"”) for which the expenses of such joint defense will be shares shared equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) 30 days after the Indemnified Person Party has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person Party shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing writing, or (bii) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Personcounsel. Neither the Indemnified Person nor the The Indemnifying Party may consent to the entry shall not be liable for any settlement of any judgment with respect Proceeding, the defense of which it has elected to the matter or enter into any assume, which settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto is effected without the written consent of the other Indemnifying Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the written consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party has elected to assume, the Indemnifying Party shall indemnify the Indemnified Person Party with respect to the settlement or judgment. If the Indemnifying Party elects to assume and control the defense or in the event of a Joint Defense Proceeding, the Indemnified Party shall take all reasonable efforts necessary to assist the Indemnifying Party in such defense.

Defense of Claims. An Indemnified (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any suit, action or proceeding made or brought by any Person seeking who is not a Party to this Agreement or an Affiliate of a Party to this Agreement (a "Third-Party Claim") with respect to which indemnification under this Article IX is to be sought from an Indemnifying Party, the Indemnitee shall give such Indemnifying Party reasonably prompt written notice thereof, but in no event later than twenty (20) Business Days after the Indemnitee's receipt of notice of such Third-Party Claim. Such notice shall describe the nature of the Third-Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be incurred by the Indemnitee. The Indemnifying Party shall have the right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third-Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel; provided that the counsel for the Indemnifying Party who shall conduct the defense of such Third-Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects to assume the defense of any Third-Party Claim, the Indemnitee shall (i) cooperate in all reasonable respects with the Indemnifying Party in connection with such defense, (ii) not admit any liability with respect to, or settle, compromise or discharge, any Third-Party Claim without the Indemnifying Party's prior written consent and (iii) agree to any settlement, compromise or discharge of a Third-Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third-Party Claim and unconditionally releases the Indemnitee completely in connection with such Third-Party Claim. In the event that the Indemnifying Party shall assume the defense of any Third-Party Claim, the Indemnitee shall be entitled to participate in (but not control) such defense with its own counsel at its own expense. If the Indemnifying Party does not assume the defense of any such Third-Party Claim, the Indemnitee may defend the same in such manner as it may deem appropriate, including settling, compromising or discharging such claim or litigation after giving notice to the Indemnifying Party of the facts terms of the proposed settlement, compromise or discharge and circumstances giving rise the Indemnifying Party will promptly reimburse the Indemnitee upon written request. Anything contained in this Agreement to the claim. In that regardcontrary notwithstanding, if any Proceeding no Indemnifying Party shall be brought entitled to assume the defense of any Third-Party Claim if such Third-Party Claim seeks an order, injunction or asserted by any third party other equitable relief or relief for other than monetary damages against the Indemnitee which, if adversely determinedsuccessful, would entitle materially adversely affect the Indemnified Person business of the Indemnitee; provided that such Indemnifying Party shall continue to indemnity be obligated to such Indemnitee pursuant to this Article IXIX for all Indemnifiable Losses relating to, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis resulting from or arising out of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Third-Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentClaim.

Defense of Claims. An Indemnified Any Person seeking making a claim for indemnification under this Article IX Section 7 (an "Indemnitee") shall give notify the party obligated to provide such indemnification (the "Indemnifier") of the claim in writing promptly after receiving written notice to of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering the Indemnifying Party of the liability, obligation or facts and circumstances giving rise to such claim for indemnification, describing the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty amount thereof (30) days notify the Indemnifying Party of the same in writingif known and quantifiable), specifying in detail and the basis of such claim and the facts pertaining theretothereof; provided provided, that the failure to so notify an Indemnifying Party the Indemnifier shall not relieve the Indemnifying Party Indemnifier of its obligations hereunder except to the extent such failure shall be proved to have harmed caused the Indemnifying PartyIndemnifier to suffer a material loss. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding Indemnifier shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and entitled to participate in the defense thereof, but the fees and expenses of such counsel employed by action, lawsuit, proceeding, investigation or other claim giving rise to the Indemnified Person Indemnitee's claim for indemnification, at the Indemnifier's expense, and at its option (subject to the limitations set forth below), the Indemnifier shall be at entitled to appoint lead counsel of such defense, acceptable to the expense Indemnitee; provided that prior to, and as a condition to, the Indemnifier's appointing lead counsel of such defense the Indemnified Person unless Indemnifier shall first (a) verify to the employment thereof has been specifically authorized by Indemnitee in writing, in form and substance satisfactory to the Indemnifying Party in writing or Indemnitee, that the Indemnifier shall be fully and unconditionally responsible (with no reservation of any rights) for all liabilities and obligations relating to such claim for indemnification and that it will provide full indemnification as required hereunder, and (b) provide the Indemnifying Party has failed to assume the defense Indemnitee with assurance, in form and employ counsel reasonably substance satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other PartyIndemnitee in its sole judgment, which consent shall not be unreasonably withheld (it being understood that the extent to which Indemnifier is and will satisfy any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter)liability; provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceedingfurther, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgment.that:

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim which may give rise to indemnity under this Article IX shall give written notice to resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party of the facts and circumstances giving rise may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice sent at any time to the claim. In that regardrelevant Indemnitee, assume the defense of any such claim or Proceeding if any the Indemnifying Party with respect to such claim or Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle acknowledges to the Indemnified Person Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, reasonably satisfactory to this Article IXsuch Indemnitee, the Indemnified Person shall within thirty (30) days notify that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and the facts pertaining thereto; provided that the failure to so notify an in full if such claim or Proceeding is decided adversely. The Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except select counsel reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control Indemnitee to conduct the defense of such Proceeding (claim or Proceeding, shall take all steps reasonably necessary in the defense or settlement thereof and shall consult with at all times diligently and promptly pursue the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesresolution thereof. If the Indemnifying Party elects to assume and control shall have assumed the defense of a Proceedingany claim or Proceeding in accordance with this Section 9.6, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in shall not (without the defense thereof, but the fees and expenses written consent of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (aeach Indemnitee) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, unless such settlement or order shall provide for the unconditional release of all Indemnitees. If the Indemnifying Party has so elected to assume the defense, each Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with respect its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Representatives to, cooperate fully with the Indemnifying Party in the defense of any claim or Proceeding being defended by the Indemnifying Party pursuant to this Section 9.6. If the matter or enter into any settlement with respect to the matter which judgment or settlement Indemnifying Party does not release assume the other Party from all liability to defense of any claim or Proceeding resulting therefrom in accordance with the third party with respect thereto terms of this Section 9.6, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, provided that the Indemnitee may not settle such claim or Proceeding without the written consent of the other Party, Indemnifying Party (which consent shall not be unreasonably withheld (it being understood or delayed), and provided further that the extent to which any Indemnifying Party will shall be obligated to pay for Damages resulting from such matter Indemnitee’s attorneys’ fees and costs promptly as compared to the other Party shall be considered they are incurred in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement such claim or judgmentProceeding.

Defense of Claims. An Indemnified Person seeking If a party hereto seeks indemnification under this Article IX Section 8.1, such party (the "Indemnified Party") shall give written notice to the other party (the "Indemnifying Party Party") of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding suit, action, claim, liability or obligation (a "Proceeding") shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Party to indemnity pursuant to this Article IXSection 8.1, the Indemnified Person Party shall within thirty (30) 30 days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding proceeding (and shall consult with the Indemnified Person Party with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and the payment of expenses; provided provided, however, that in the event any Proceeding proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person Party to full indemnity pursuant to this Article IXSection 8.1, the Indemnified Person Party may elect to participate in the a joint defense of such Proceeding proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares shared equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceedingproceeding, it will provide notice thereof within thirty (30) 30 days after the Indemnified Person Party has given notice of the matter and if such Proceeding proceeding is not a Joint Defense Proceeding, the Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person Party shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (bii) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Personcounsel. Neither the Indemnified Person nor the The Indemnifying Party may consent to the entry shall not be liable for any settlement of any judgment with respect proceeding, the defense of which it has elected to the matter or enter into any assume, which settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto is effected without the written consent of the other Indemnified Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the written consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceedingproceeding, the defense of which the Indemnifying Party has elected to assume, the Indemnifying Party shall indemnify the Indemnified Person Party with respect to the settlement or judgment. If the Indemnifying Party elects to assume and control the defense or in the event of a Joint Defense Proceeding, the Indemnified Party shall take all reasonable efforts necessary to assist the Indemnifying Party in such defense.

Defense of Claims. An Indemnified Person seeking (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Third Party (a “Third Party Claim”) against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) calendar days after receipt of notice of such Third Party Claim; provided, however, that the failure of the Indemnitee to so notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article IX XV to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall give be entitled, upon written notice to the Indemnifying Party of Indemnitee, to assume the facts investigation and circumstances giving rise to the claim. In that regarddefense thereof; provided, if any Proceeding shall be brought or asserted by any third party whichhowever, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve have the right to control the defense unless and until the Indemnifying Party of its obligations hereunder except agrees in writing to indemnify the Indemnitee with respect to such Third Party Claim, subject to the extent such failure shall have harmed the Indemnifying Partyapplicable limitations set forth herein. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought Whether or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume the investigation and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingany Third Party Claim, the Indemnified Person Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party in writing or Party, (bii) the Indemnifying Party has failed to assume the defense of such Third Party Claim within a reasonable time after receipt of notice thereof and employ counsel reasonably satisfactory in accordance with Section 15.4(a), or (iii) the named parties to the Indemnified Person. Neither the Indemnified Person nor proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may consent be available to the entry of any judgment Indemnitee that are not available to or are in conflict with respect those available to the matter or enter into any settlement with respect to Indemnifying Party. Notwithstanding the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assumeforegoing, the Indemnifying Party shall indemnify not be liable for the fees and disbursements of more than one counsel for all Indemnified Person Parties in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant (which offer provides for a full and unconditional release of the Indemnitee), and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party’s willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (A) the amount of the settlement offer that the Indemnitee declined to accept plus the Indemnifiable Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or judgment(B) the aggregate Indemnifiable Losses of the Indemnitee with respect to such claim.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX If the Indemnifying Party elects to defend a CLAIM pursuant to Section 17.6.1, it shall give written notice to the Indemnifying Indemnified Party within fifteen (15) days after the receipt of the notice from the Indemnified Party of the facts potential indemnifiable CLAIM which involves (and circumstances giving rise continues to the claim. In involve) solely monetary damages; provided, that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30a) days notify the Indemnifying Party of expressly agrees in such notice that, as between the same in writing, specifying in detail the basis of such claim Indemnifying Party and the facts pertaining thereto; provided that Indemnified Party, the failure to so notify an Indemnifying Party shall not relieve be solely obligated to satisfy and discharge the CLAIM, subject to the terms, conditions and limitations of this AGREEMENT, and (b) the Indemnifying Party makes reasonably adequate provisions to ensure the Indemnified Party of its obligations hereunder except to the extent such failure shall have harmed ability of the Indemnifying PartyParty to satisfy the full amount of any adverse monetary judgment that may result such conditions (the "Litigation Conditions"). The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult Subject to compliance with the Indemnified Person with respect thereto)Litigation Conditions, including the employment of Indemnifying Party shall retain counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle Party to represent the Indemnified Person Party and shall pay the fees and expenses of such counsel related to full indemnity pursuant to this Article IXsuch proceeding. In any such proceeding, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless Party unless: (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing and the Indemnified Party shall have mutually agreed to the retention of such counsel, or (b) the Indemnifying Party has failed named parties to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor any such proceeding (including any impleaded parties) include both the Indemnifying Party may consent and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. All such fees and expenses shall be reimbursed as they are incurred. If the Litigation Conditions are not met within twenty (20) days after receipt of notice of the CLAIM, the Indemnifying Party shall be bound by any reasonable defense or settlement made by the Indemnified Party and shall reimburse the Indemnified Party for any and all LOSSES of the Indemnified Party related to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment defense or settlement does of the CLAIM. If the Litigation Conditions have been met, then the Indemnified Party shall not release the other Party from all liability to the third party with respect thereto settle any CLAIM for which it is seeking indemnification without the prior consent of the other Indemnifying Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any withheld. The Indemnified Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which shall, if requested by the Indemnifying Party consents or a final judgment for the plaintiff Party, cooperate in any Proceeding, all reasonable respects in the defense of which such CLAIM that is being managed and controlled by the Indemnifying Party elected to assume, the Party. The Indemnifying Party shall indemnify not, without the written consent of the Indemnified Person with Party, effect any settlement of any pending or threatened proceeding in respect to of which the Indemnified Party is, or arising out of the same set of facts could have been, a Party and indemnity could have been sought hereunder by the Indemnified Party, unless such settlement or judgmentincludes an unconditional release of the Indemnified Party from all liability on claims that are the subject matter of such proceeding.

Defense of Claims. An Indemnified Person seeking (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity that is not a party to this Agreement or an Affiliate of such a party (a "Third Party Claim") against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) calendar days after receipt of notice of such Third Party Claim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article IX 12 to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall give be entitled, upon written notice to the Indemnifying Party of Indemnitee, to assume the facts investigation and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought Indemnitee. Whether or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume the investigation and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingany Third Party Claim, the Indemnified Person Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party in writing or Party, (bii) the Indemnifying Party has failed to assume the defense and employ of such Third Party Claim within reasonable time after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee, or (iii) the Indemnified Person. Neither named parties to the Indemnified Person nor proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may consent be available to the entry of any judgment Indemnitee that are in conflict with respect those available to the matter or enter into any settlement with respect to Indemnifying Party. Notwithstanding the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assumeforegoing, the Indemnifying Party shall indemnify not be liable for the fees and disbursements of more than one counsel for all Indemnified Person Parties in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (A) the amount of the settlement offer that the Indemnitee declined to accept plus the Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or judgment(B) the aggregate Losses of the Indemnitee with respect to such claim.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice to the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an The Indemnifying Party shall not relieve have twenty (20) calendar days after receipt of the Indemnifying Party of Litigation Notice to notify the Claimant that it acknowledges its obligations hereunder except obligation to indemnify and hold harmless the Claimant with respect to the extent such failure shall have harmed Indemnity Loss set forth in the Indemnifying Party. The Indemnifying Party, if Litigation Notice and that it so elects, shall assume elects to conduct and control the defense of such Proceeding (and shall consult with the Indemnified Person any legal or administrative action or suit with respect theretoto an identifiable claim (the “Election Notice”), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control gives a Disagreement Notice or does not give the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingforegoing Election Notice, the Indemnified Person Claimant shall have the right to employ defend, contest, settle or compromise such action or suit in the exercise of its sole discretion; provided, however, that the right of the Claimant to indemnification hereunder shall not be conclusively established thereby. If the Indemnifying Party gives the foregoing Election Notice and provides information satisfactory to the Claimant in its sole discretion confirming the Indemnifying Party’s financial capacity to defend such Indemnity Loss and provide indemnification with respect to such Indemnity Loss, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel separate from counsel employed by satisfactory to the Claimant and at the Indemnifying Party’s sole expense, the conduct and PORTIONS OF THIS EXHIBIT HAVE BEEN REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED, MARKED WITH “[*]” AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. EXECUTION VERSION settlement of such action or suit, and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not thereby consent to the imposition of any such action and injunction against the Claimant without the prior written consent of the Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the defense thereofClaimant, but the fees and expenses of such legal counsel employed shall be borne by the Indemnified Person Claimant, except as provided in clause (c) below, (c) upon a final determination of such action or suit, the Indemnifying Party shall be at promptly reimburse the expense Claimant, to the extent required under this Article VI, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the Indemnified Person unless (a) the employment thereof has been specifically authorized conduct and control of such action or suit by the Indemnifying Party in writing good faith and (d) the Claimant shall have the right to pay or (b) settle any such action or suit; provided, however, that in the event of such payment or settlement, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with no amount in respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party thereof shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentclaimed as an Indemnity Loss under this Article VI.

Defense of Claims. An Indemnified Person Any Excalibur Indemnitee or GRMG Indemnitee (the "INDEMNIFIED PARTY") seeking indemnification under this Article IX Agreement shall give written notice to the Indemnifying party obligated to provide indemnification to such Indemnified Party of (the "INDEMNITOR") a notice (a "CLAIM NOTICE") describing in reasonable detail the facts and circumstances giving rise to any claim for indemnification hereunder promptly upon learning of the existence of such claim. In that regardUpon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall Indemnitor may assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other expenses related thereto; and the payment of expenses; provided that Indemnified Party shall cooperate in the event any Proceeding defense or prosecution thereof and shall be brought or asserted by any third party whichfurnish such records, if adversely determinedinformation and testimony and attend all such conferences, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXdiscovery proceedings, the Indemnified Person hearings, trials and appeals as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrequested in connection therewith. If the Indemnifying Party elects to Indemnitor does not assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) ten days after of its receipt of the Claim Notice, the Indemnitor shall similarly cooperate with the Indemnified Person has given notice of the matter and if Party in such Proceeding is not a Joint Defense Proceeding, the defense or prosecution. The Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofor prosecution of any lawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party to take charge of the defense of such action, (ii) such Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry shall have reasonably concluded that there exists a significant conflict of any judgment interest with respect to the matter conduct of such Indemnified Party's defense by the Indemnitor, or enter into any settlement with respect (iii) the Indemnitor fails to provide reasonable insurance to the matter which judgment or settlement does not release the other Indemnified Party from all liability of its financial capacity to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from defend such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement action and provide indemnification with respect to such matter); provided that no settlement action, in any of a Joint Defense Proceeding may be effected without the consent of both parties. If there which events such reasonable fees and expenses shall be a settlement borne by the Indemnitor and the Indemnitor shall not have the right to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, direct the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify any such action on behalf of the Indemnified Party. The Indemnitor shall have the right, in its sole discretion, to settle any claim (a) which is solely for monetary damages for which indemnification has been sought and is available hereunder, and (b) where there is no finding or admission of any violation of any legal requirements or any violation of the rights of any Person with respect and no effect on any other claims that may be made against the indemnified party, provided that the Indemnitor shall not agree to the settlement of any claim which constitutes the subject of a Claim Notice which settlement in the reasonable opinion of the Indemnified Party would have a material adverse continuing effect on the business of the Indemnified Party without the prior written consent of the Indemnified Party. The Indemnified Party shall give written notice to the Indemnitor of any proposed settlement of any suit, which settlement the Indemnitor may, if it shall have assumed the defense of the suit, reject in its reasonable judgment within 10 days of receipt of such notice. Notwithstanding the foregoing the Indemnified Party shall have the right to pay or judgmentsettle any suit for which indemnification has been sought and is available hereunder, provided that, if the defense of such claim shall have been assumed by the Indemnitor, the Indemnified Party shall automatically be deemed to have waived any right to indemnification hereunder.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice to the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an The Indemnifying Party shall not relieve have 30 business days after receipt of the Indemnifying Party of Litigation Notice to notify the Claimant that it acknowledges its obligations hereunder except obligation to indemnify and hold harmless the Claimant with respect to the extent such failure shall have harmed Indemnity Loss set forth in the Indemnifying Party. The Indemnifying Party, if Litigation Notice and that it so elects, shall assume elects to conduct and control the defense of such Proceeding (and shall consult with the Indemnified Person any legal or administrative action or suit with respect theretoto an indemnifiable claim (the "Election Notice"), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects fails to assume and control give a Disagreement Notice or does not give the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingforegoing Election Notice, the Indemnified Person Claimant shall have the right to employ defend, contest, settle, or compromise such action or suit in the exercise of its exclusive discretion. If the Indemnifying Party gives the foregoing Election Notice, the Indemnifying Party shall have the right to undertake, conduct, and control, through counsel separate from counsel employed by of its own choosing and at its sole expense, the conduct and settlement of such action or suit, and the Claimant shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not thereby consent to the imposition of any such injunction against the Claimant, or pay or settle any action and or suit that affects the Claimant, any Seller or any Buyer, without the written consent of the Claimant which consent shall not be unreasonably withheld; (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through counsel chosen by the defense thereofClaimant, but the fees and expenses of such counsel employed shall be borne by the Indemnified Person Claimant except as provided in clause (c) below; (c) upon a final determination of such action or suit, the Claimant, to the extent required under and in accordance with this Article XII, shall be at paid for the expense full amount of any Indemnity Loss incurred by the Claimant except for fees and expenses of counsel that the Claimant incurred after the assumption of the Indemnified Person unless (a) the employment thereof has been specifically authorized conduct and control of such action or suit by the Indemnifying Party in writing good faith; and (d) the Claimant shall have the right to pay or (b) settle any such action or suit, provided that in such event the Claimant shall waive any right to indemnity therefor by the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with no amount in respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party thereof shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentclaimed as an Indemnity Loss under this Article XII.

Defense of Claims. An If a claim for indemnity is to be made by a Purchaser Indemnitee or Seller Indemnitee (an "Indemnified Person") against Seller or Purchaser, as the case may be (the "Indemnifying Person"), the Indemnified Person seeking indemnification under this Article IX shall give written notice to the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Person as soon as practical after the Indemnified Person becomes aware of any fact, condition or event which may give rise to indemnity pursuant to a claim for which indemnification may be sought under this Article IX7. If any lawsuit or enforcement action is filed against an Indemnified Person, written notice thereof shall be given to the Indemnifying Person as promptly as practicable (and in any event within 15 days after the service of the citation or summons). After such notice, if the Indemnifying Person acknowledges in writing to the Indemnified Person that the Indemnifying Person shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or action, then the Indemnifying Person shall be entitled, if it so elects to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at the Indemnifying Person's cost, risk and expense, provided that the Indemnifying Person and its counsel shall proceed with diligence and in good faith with respect thereto. The Indemnified Person shall cooperate in all reasonable respects with the Indemnifying Person and such attorneys in the investigation, trial and defenses of such lawsuit or action and any appeal arising therefrom; provided, however, that the Indemnified Person may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action or any appeal arising therefrom. If the Indemnifying Person has acknowledged to the Indemnified Person its obligation to indemnify hereunder, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of not settle such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought lawsuit or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such enforcement action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the prior written consent of the other PartyIndemnifying Person, which consent shall not be unreasonably withheld (it being understood that withheld, and, if the extent to which any Party will be obligated to pay for Damages resulting from Indemnifying Person has not so acknowledged its obligation, the Indemnified Person shall not settle such matter as compared lawsuit or enforcement action without 20 days prior notice to the other Party shall be considered Indemnifying Person. Notwithstanding anything to the contrary contained in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which this Section 7.4, if the Indemnifying Party consents Person fails to respond to any service of citation or a final judgment for the plaintiff in any Proceedingnotice contemplated herein, or to prosecute the defense of which the Indemnifying Party elected to assumesuch action or lawsuit in a diligent manner, the Indemnifying Party shall indemnify the Indemnified Person with respect shall be entitled to notify the Indemnifying Person in writing and take over the defense in such matter and to settle the action or lawsuit following 20 days prior notice to the settlement or judgmentIndemnifying Person both at the expense of the Indemnifying Person.

Defense of Claims. An Indemnified Person seeking (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any entity that is not a party to this Agreement or an Affiliate of such a party (a "Third Party Claim") against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) calendar days after receipt of notice of such Third Party Claim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article IX 12 to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall give be entitled, upon written notice to the Indemnifying Party of Indemnitee, to assume the facts investigation and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought Indemnitee. Whether or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume the investigation and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingany Third Party Claim, the Indemnified Person Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party in writing or Party, (bii) the Indemnifying Party has failed to assume the defense and employ of such Third Party Claim within reasonable time after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee, or (iii) the Indemnified Person. Neither named parties to the Indemnified Person nor proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may consent be available to the entry of any judgment Indemnitee that are in conflict with respect those available to the matter or enter into any settlement with respect to Indemnifying Party. Notwithstanding the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assumeforegoing, the Indemnifying Party shall indemnify not be liable for the fees and disbursements of more than one counsel for all Indemnified Person Parties in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party's willing-ness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (A) the amount of the settlement offer that the Indemnitee declined to accept plus the Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or judgment(B) the aggregate Losses of the Indemnitee with respect to such claim.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim which may give rise to indemnity under this Article IX shall give resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Parties may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice sent at any time to the relevant Indemnitee, assume the defense of any such claim or Proceeding if all Indemnifying Party of the facts and circumstances giving rise Parties with respect to such claim or Proceeding jointly acknowledge to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Indemnitee the Indemnified Person Indemnitee’s right to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party hereto in respect of the same in writing, specifying in detail the basis entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and the facts pertaining thereto; provided provide assurances, reasonably satisfactory to such Indemnitee, that the failure Indemnifying Parties will be financially able to so notify an Indemnifying Party shall not relieve satisfy their respective Pro Rata Portions of such claim in full if such claim or Proceeding is decided adversely. If the Indemnifying Party Parties assume the defense of its obligations hereunder except to the extent any such failure shall have harmed claim or Proceeding, the Indemnifying Party. The Indemnifying Party, if it so elects, Parties shall assume and control select counsel reasonably acceptable to such Indemnitee to conduct the defense of such Proceeding (claim or Proceeding, shall take all steps reasonably necessary in the defense or settlement thereof and shall consult with at all times diligently and promptly pursue the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesresolution thereof. If the Indemnifying Party elects to assume and control Parties shall have assumed the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such any claim or Proceeding is not a Joint Defense Proceedingin accordance with this Section 9.04, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person Parties shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemnitee; provided, however, that the Indemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment either concurrently with respect the effectiveness thereof or shall obtain and deliver to such Indemnitees prior to the matter or enter into any execution of such settlement with respect to a general release executed by the matter which judgment or settlement does Person not release the other Party from all liability to the third a party with respect thereto without the consent of the other Partyhereto, which consent general release shall release such Indemnitee from any liability in such matter; provided, further, that the Indemnifying Parties shall not be unreasonably withheld (it being understood authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that the extent would apply to which any Party will be obligated Indemnitee or to pay for Damages resulting from its conduct of business; and provided, further, that a condition to any such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement Affiliates, officers, employees, consultants and agents with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesclaim. If there Such Indemnitee shall be a settlement entitled to which the Indemnifying Party consents or a final judgment for the plaintiff participate in any Proceeding, (but not control) the defense of which any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party elected Parties in the defense of any claim or Proceeding being defended by the Indemnifying Parties pursuant to assumethis Section 9.04. If the Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 9.04, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Parties, on such terms as such Indemnitee may deem appropriate. If the Indemnifying Parties seek to question the manner in which such Indemnitee defended such claim or Proceeding or the amount of or nature of any such settlement, the Indemnifying Party Parties shall indemnify have the Indemnified Person with respect burden to prove by a preponderance of the settlement evidence that such Indemnitee did not defend such claim or judgmentProceeding in a reasonably prudent manner.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim that may give rise to indemnity under this Article IX Section 8 resulting from or arising out of any claim or Proceeding against an Indemnitee by a person or entity that is not a party hereto, the Indemnifying Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim) but shall give not be obligated to, upon written notice to the relevant Indemnitee, assume the defense of any such claim or Proceeding if the Indemnifying Party of the facts and circumstances giving rise with respect to such claim or Proceeding acknowledges to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Indemnitee the Indemnified Person Indemnitee's right to indemnity pursuant hereto to this Article IXthe extent provided herein (as such claim may have been modified through written agreement of the parties) and provides assurances, the Indemnified Person shall within thirty (30) days notify reasonably satisfactory to such Indemnitee, that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and to the facts pertaining theretoextent provided herein if such claim or Proceeding is decided adversely; provided provided, however, that the failure nothing set forth herein shall be deemed to so notify an Indemnifying Party shall not relieve require the Indemnifying Party of its obligations hereunder except to waive any crossclaims or counterclaims the Indemnifying Party may have against the Indemnified Party for damages. The Indemnified Party shall be entitled to retain separate counsel, reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto)Party shall determine, including upon the employment written advice of counsel reasonably satisfactory to counsel, that an actual or potential conflict of interest exists between the Indemnifying Party and the Indemnified Person and the payment of expenses; provided that Party in the event any Proceeding connection with such Proceeding. The Indemnifying Party shall be brought or asserted by any third party which, if adversely determined, would not entitle obligated to pay the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the reasonable fees and expenses of such joint defense will be shares equally separate counsel to the extent the Indemnified Party is entitled to indemnification by the Indemnifying Party with respect to such parties and the employment of counsel shall be reasonably satisfactory to both partiesclaim or Proceeding under this Section 8(d). If the Indemnifying Party elects to assume and control assumes the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if any such Proceeding is not a Joint Defense claim or Proceeding, the Indemnified Person Indemnifying Party shall have select counsel reasonably acceptable to such Indemnitee to conduct the right to employ counsel separate from counsel employed by defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party in any such action and to participate in shall have assumed the defense thereofof any claim or Proceeding in accordance with this Section 8(d), but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed shall be authorized to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the prior written consent of such Indemnitee, not to be unreasonably withheld; provided, however, that the other PartyIndemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided further, which consent that the Indemnifying party shall not be unreasonably withheld (it being understood authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that the extent would apply to which any Party will be obligated Indemnitee or to pay for Damages resulting from its conduct of business; and provided further, that a condition to any such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement Affiliates, directors, officers, employees and agents with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesclaim, including any reasonably foreseeable collateral consequences thereof. If there Such Indemnitee shall be a settlement entitled to which participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which any claim or Proceeding being defended by the Indemnifying Party elected pursuant to assume, this Section 8(d). If the Indemnifying Party shall indemnify does not assume the Indemnified Person defense of any claim or Proceeding resulting therefrom in accordance with respect the terms of this Section 8(d), such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the settlement Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or judgmentProceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner.

Defense of Claims. An Indemnified Person seeking indemnification Except as otherwise set forth in the last sentence of this Section 8.06, in connection with any claim which may give rise to indemnity under this Article IX shall give written notice to VIII resulting from or arising out of any Action against an Indemnitee by a Person that is not a Party hereto, the Indemnifying Party of the facts and circumstances giving rise may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice sent at any time to the claim. In relevant Indemnitee, assume the defense of any such Action, to the extent that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Action relates only to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify monetary damages and the Indemnifying Party of provides assurances, reasonably satisfactory to such Indemnitee, that the same in writing, specifying in detail the basis of Indemnifying Party will be financially able to satisfy such claim and the facts pertaining thereto; provided that the failure to so notify an in full if such Action is decided adversely. The Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except select counsel reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control Indemnitee to conduct the defense of such Proceeding (Action, shall take all steps reasonably necessary in the defense or settlement thereof and shall consult with at all times diligently and promptly pursue the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesresolution thereof. If the Indemnifying Party elects to assume and control shall have assumed the defense of a Proceedingany Action in accordance with this Section 8.06, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment with respect arising from, any such Action, to the matter extent that the settlement requires only the payment of monetary damages, includes no injunctive provisions or enter into performance requirements of the Indemnitee and includes no admission of guilt or liability. If the Indemnifying Party has so elected to assume the defense, each Indemnitee shall be entitled to participate in (but not control) the defense of any settlement such action, with respect its own counsel and, except as provided herein, at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party in the defense of any Action being defended by the Indemnifying Party pursuant to this Article VIII. If the Indemnifying Party does not assume the defense of any Action resulting therefrom in accordance with the terms of this Section 8.06, or the Indemnifying Party does not acknowledge to the matter which judgment Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties) or settlement the Indemnifying Party does not release the other Party from all liability provides assurances, reasonably satisfactory to the third party with respect thereto without the consent of the other Partysuch Indemnitee, which consent shall not be unreasonably withheld (it being understood that the extent to which any Indemnifying Party will be obligated financially able to pay for Damages resulting from satisfy such matter claim in full if such Action is decided adversely, such Indemnitee may defend against such Action in such manner as compared to it may deem appropriate at the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry cost of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentParty.

Defense of Claims. An Any Buyer Indemnitee (the "Indemnified Person Party") seeking indemnification under this Article IX Agreement shall give written notice to the Indemnifying party obligated to provide indemnification to such Indemnified Party of (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts and circumstances giving rise to any claim for indemnification hereunder promptly upon learning of the existence of such claim. In that regardUpon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall Indemnitor may assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other expenses related thereto; and the payment of expenses; provided that Indemnified Party shall cooperate in the event any Proceeding defense or prosecution thereof and shall be brought or asserted by any third party whichfurnish such records, if adversely determinedinformation and testimony and attend all such conferences, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXdiscovery proceedings, the Indemnified Person hearings, trials and appeals as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrequested in connection therewith. If the Indemnifying Party elects to Indemnitor does not assume and control the defense of a Proceedingthereof, it will provide notice thereof within thirty (30) days after the Indemnitor shall similarly cooperate with the Indemnified Person has given notice of the matter and if Party in such Proceeding is not a Joint Defense Proceeding, the defense or prosecution. The Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofor prosecution of any lawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party to take charge of the defense of such action or (ii) such Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry shall have reasonably concluded that there exists a significant conflict of any judgment interest with respect to the matter or enter into conduct of such Indemnified Party's defense by the Indemnitor, in either of which events such fees and expenses shall be borne by the Indemnitor and the Indemnitor shall not have the right to direct the defense of any settlement with respect such action on behalf of the Indemnified Party. The Indemnitor shall have the right, in its sole discretion, to settle any claim solely for monetary damages for which indemnification has been sought and is available hereunder, provided that the Indemnitor shall not agree to the matter settlement of any claim which judgment or constitutes the subject of a Claim Notice which settlement does not release in the other reasonable opinion of the Indemnified Party from all liability to would have an adverse continuing effect on the third party with respect thereto business of the Indemnified Party without the prior written consent of the other Indemnified Party. The Indemnified Party shall give written notice to the Indemnitor of any proposed settlement of any suit, which consent settlement the Indemnitor may, if it shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, have assumed the defense of the suit, reject in its reasonable judgment within 10 days of receipt of such notice. Notwithstanding the foregoing the Indemnified Party shall have the right to pay or settle any suit for which indemnification has been sought and is available hereunder, provided that, if the Indemnifying Party elected to assumedefense of such claim shall have been assumed by the Indemnitor, the Indemnifying Indemnified Party shall indemnify the Indemnified Person with respect automatically be deemed to the settlement or judgmenthave waived any right to indemnification hereunder.

Defense of Claims. An Indemnified Person seeking No right to indemnification under this Article IX Section 15 shall give written notice be available to any of Buyer's Indemnitee or Seller's Indemnitee (the "Indemnified Party") unless such Indemnified Party shall have given to the Indemnifying party obliged to provide indemnification of such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly after receipt of knowledge by officers or management personnel of the Indemnified Party of the facts and circumstances giving rise upon which such claim is based; provided, however, that the failure of any Indemnified Party to so notify the Indemnitor shall not relieve the Indemnitor from any indemnification liability it may have except to the claim. In extent that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify the Indemnitor materially prejudices the Indemnitor's ability to defend against such claim. Upon receipt by the Indemnitor of the Claim Notice from an Indemnifying Indemnified Party shall not relieve the Indemnifying Party with respect to any claim of its obligations hereunder except to the extent a third party, such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall Indemnitor may assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party, and the payment of expenses; provided that Indemnified Party shall cooperate in the event any Proceeding defense or prosecution thereof and shall be brought or asserted by any third party whichfurnish such records, if adversely determinedinformation and testimony and attend all such conferences, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXdiscovery proceedings, the Indemnified Person hearings, trials and appeals as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrequested in connection therewith. If the Indemnifying The Indemnified Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ its own counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofcase, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party to take charge of the defense of such action or (ii) such Indemnified Person. Neither the Party shall have reasonably concluded that there may be one or more legal defenses available to it, or to any other Indemnified Person nor the Indemnifying Party may consent who has submitted a Claim Notice to the entry Indemnitor, which are different from or additional to those available to the Indemnitor, in either of any judgment which events such fees and expenses shall be borne by the Indemnitor (but in no event shall the Indemnitor be required to pay the fees and expenses of more than one counsel employed by more than one Indemnified Party with respect to any claim) and the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent Indemnitor shall not be unreasonably withheld (it being understood that have the extent right to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, direct the defense of which any such action on behalf of the Indemnifying Party elected to assume, the Indemnifying Indemnified Party. The Indemnified Party shall indemnify the Indemnified Person with respect give written notice to the Indemnitor of any proposed settlement or judgmentof any claim, which settlement the Indemnitor may reject in its reasonable judgment within ten (10) days of receipt of such notice. The Indemnitor shall have the right, in its sole discretion, to settle any claim for monetary damages for which indemnification has been sought and is available hereunder.

Defense of Claims. An Indemnified Person seeking indemnification Except as otherwise set forth in the last sentence of this Section 9.6, in connection with any claim which may give rise to indemnity under this Article IX shall give written notice to 9 resulting from or arising out of any claim or Action against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party of the facts and circumstances giving rise may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice sent at any time to the claim. In relevant Indemnitee, assume the defense of any such claim or Action, to the extent that regardthe claim or Action relates only to monetary damages and not the Transferred Assets or the ability to exploit the Transferred Assets, if any Proceeding shall be brought or asserted by any third party whichand such Indemnifying Party provides assurances, if adversely determinedreasonably satisfactory to such Indemnitee, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and the facts pertaining thereto; provided that the failure to so notify an in full if such claim or Action is decided adversely. The Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except select counsel reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control Indemnitee to conduct the defense of such Proceeding claim or Action (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment acceptance of counsel shall not be unreasonably withheld by the Indemnitee), shall take all steps reasonably satisfactory to both partiesnecessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party elects to assume and control shall have assumed the defense of a Proceedingany claim or Action in accordance with this Section 9.6, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense authorized to consent to a settlement of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect arising from, any such claim or Action, to the matter extent that the settlement or enter into any settlement with respect to judgment requires only the matter which judgment payment of monetary damages, includes no injunctive provisions or settlement does not release performance requirements of Indemnitee and includes no admission of guilt or liability. Or in the other alternative, the Indemnifying Party from all liability to the third party with respect thereto without the will seek consent of the other Party, Indemnitee (which consent shall not be unreasonably withheld or delayed). If the Indemnifying Party has so elected to assume the defense, each Indemnitee shall be entitled to participate in (it but not control) the defense of any such action, with its own counsel and, except as provided herein, at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party in the defense of any claim or Action being understood defended by the Indemnifying Party pursuant to this Section 9.6. If the Indemnifying Party does not assume the defense of any claim or Action resulting therefrom in accordance with the terms of this Section 9.6, or the Indemnifying Party does not acknowledge to the Indemnitee the Indemnitee’s right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the Parties) or the Indemnifying Party does not provides assurances, reasonably satisfactory to such Indemnitee, that the extent to which any Indemnifying Party will be obligated financially able to pay for Damages resulting from satisfy such matter claim in full if such claim or Action is decided adversely, such Indemnitee may defend against such claim or Action in such manner as compared to it may deem reasonably appropriate at the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry cost of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentParty.

Defense of Claims. An Indemnified (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any claim, action, or proceeding made or brought by any Person seeking who is not a Party to this Agreement or any Affiliate of a Party to this Agreement (a "Third Party Claim"), including an information document request or a notice of proposed disallowance issued by the IRS relating to a matter covered by Section 5.7, with respect to which indemnification under this Article IX is to be sought from an Indemnifying Party, the Indemnitee shall give such Indemnifying Party reasonably prompt written notice thereof, but in any event such notice shall not be given later than twenty (20) days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party will have the right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel, provided that the counsel for the Indemnifying Party who shall conduct the defense of such Third Party Claim shall be reasonably satisfactory to the Indemnitee. The Indemnitee shall cooperate in good faith in such defense at such Indemnitee's own expense. If an Indemnifying Party elects not to assume the defense of any Third Party Claim, the Indemnitee may compromise or settle such Third Party Claim over the objection of the Indemnifying Party, which settlement or compromise shall conclusively establish the Indemnifying Party's Liability pursuant to this Agreement; provided, however, that the Indemnitee provides written notice to the Indemnifying Party of its intent to settle and such notice reasonably describes the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis terms of such claim and the facts pertaining thereto; provided that the failure settlement at least ten (10) Business Days prior to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter entering into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentsettlement.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim that may give rise to indemnity under this Article IX resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party may but shall give not be obligated to (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or Proceeding if the Indemnifying Party of the facts and circumstances giving rise with respect to such claim or Proceeding acknowledges to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Indemnitee the Indemnified Person Indemnitee's right to indemnity pursuant hereto to this Article IXthe extent provided herein and provides assurances, the Indemnified Person shall within thirty (30) days notify reasonably satisfactory to such Indemnitee, that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent provided herein if such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such claim or Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesis decided adversely. If the Indemnifying Party elects to assume and control assumes the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if any such Proceeding is not a Joint Defense claim or Proceeding, the Indemnified Person Indemnifying Party shall have select counsel reasonably acceptable to such Indemnitee to conduct the right to employ counsel separate from counsel employed by defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party in any such action and to participate in shall have assumed the defense thereofof any claim or Proceeding in accordance with this Section 9.04, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed shall be authorized to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment with respect arising from, any such claim or Proceeding, without the prior written consent of such Indemnitee; PROVIDED, HOWEVER, that the Indemnifying Party shall, subject to the matter provisions of Section 9.01, pay or enter into any cause to be paid all amounts arising out of such settlement or judgment concurrently with respect to the matter which judgment or settlement does not release effectiveness thereof; PROVIDED FURTHER, that the other Indemnifying Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that the extent would apply to which any Party will be obligated Indemnitee or to pay for Damages resulting from its conduct of business; and PROVIDED FURTHER, that a condition to any such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement Affiliates, directors, officers, employees and agents with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesclaim, including any reasonably foreseeable collateral consequences thereof. If there Such Indemnitee shall be a settlement entitled to which participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which any claim or Proceeding being defended by the Indemnifying Party elected pursuant to assumethis Section 9.04. If the Indemnifying Party does not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 9.04, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If the Indemnifying Party is ultimately adjudged liable and seeks to question the manner in which such Indemnitee defended such claim or Proceeding or the amount of or nature of any such settlement, the Indemnifying Party shall indemnify have the Indemnified Person with respect burden to prove by a preponderance of the settlement evidence that such Indemnitee did not defend such claim or judgmentProceeding in a reasonably prudent manner.

Defense of Claims. An Indemnified 12.2.1 If any Indemnitee receives notice of the assertion of any claim or of the commencement of any claims, action, or proceeding made or brought by any Person seeking (including Guarantor, Buyer, their respective Affiliates, officers, directors and shareholders, and the successors and assigns of any such Person) (a "Third Party Claim") with respect to which indemnification under this Article IX is to be sought from a Person that is required to indemnify such Indemnitee (an "Indemnifying Party"), the Indemnitee shall give such Indemnifying Party reasonably prompt written notice thereof but in any event such notice shall not be given later than ten (10) calendar days after the Indemnitee's receipt of notice of such Third Party Claim. Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. In addition, the Indemnitee shall transmit to the Indemnifying Party a copy of all papers served with respect to such claim (if any). The Indemnitee shall cooperate in good faith 106 114 in such defense at the Indemnifying Party's expense. If the Indemnifying Party shall acknowledge in writing to the Indemnitee that the Indemnifying Party shall be obligated to indemnify the Indemnitee under the terms of its indemnity hereunder in connection with such Third Party Claim, then the Indemnifying Party will have the right to participate in or, by giving written notice to the Indemnitee, to elect to assume the defense of any Third Party Claim at such Indemnifying Party of the facts Party's expense and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the employing such Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining theretoParty's own counsel; provided that the failure to so notify an Indemnifying Party shall not relieve counsel for the Indemnifying Party of its obligations hereunder except to the extent such failure who shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control conduct the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel Third Party Claim shall be reasonably satisfactory to both partiesthe Indemnitee. If the an Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to of any Third Party Claim, the Indemnified Person. Neither Indemnitee may compromise or settle such Third Party Claim over the Indemnified Person nor objection of the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent settlement or compromise shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which conclusively establish the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected Party's liability pursuant to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentthis Agreement.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice Indemnitee, not to be unreasonably withheld; provided, however, that the Indemnifying Party of the facts and circumstances giving rise shall pay or cause to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis paid all amounts arising out of such claim and settlement or judgment concurrently with the facts pertaining theretoeffectiveness thereof; provided provided, further, that the failure to so notify an Indemnifying Party shall not relieve be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, directors, officers, employees and agents with respect to such claim, including any reasonably foreseeable collateral consequences thereof. Such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control in the defense of such any claim or Proceeding (and shall consult with being defended by the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity Indemnifying Party pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesSection 10.4. If the Indemnifying Party elects to does not assume and control the defense of a Proceedingany claim or Proceeding resulting therefrom in accordance with the terms of this Section 10.4, such Indemnitee may defend against such claim or Proceeding in such manner as it will provide notice thereof within thirty (30) days reasonably may deem appropriate, including settling such claim or proceeding after the Indemnified Person has given giving reasonable notice of the matter and if same to the Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or Proceeding is not a Joint Defense Proceedingor the amount of or nature of any such settlement, the Indemnified Person such Indemnifying Party shall have the right burden to employ counsel separate from counsel employed prove by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense a preponderance of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party evidence that such Indemnitee did not defend such claim or Proceeding in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel a reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentprudent manner.

Defense of Claims. An Indemnified Person seeking No right to indemnification under this Article IX X shall give written notice be available to any party otherwise entitled to indemnification (the "Indemnified Party"), unless such Indemnified Party gives to the Indemnifying party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly after the receipt of knowledge of the facts and circumstances giving rise upon which such claim is based (but in no event later than ten (10) days prior to the claim. In that regard, if time any Proceeding shall be brought or response to the asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining theretois required); provided except that the failure of any Indemnified Party to so notify an Indemnifying Party shall the Indemnitor will not relieve the Indemnifying Party of its obligations hereunder except Indemnitor from any liability it may have if and to the extent the Indemnitor is not prejudiced by such failure shall have harmed omission. Upon receipt by the Indemnifying Party. The Indemnifying PartyIndemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, such Indemnitor may control negotiations towards the resolution of any such claim without the necessity for litigation, and, if it so electslitigation ensues, shall assume and control the defense of thereof at such Proceeding (Indemnitor's cost and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party, and the payment of expenses; provided that Indemnified Party will extend reasonable cooperation in the event any Proceeding shall be brought defense or asserted by any third party whichprosecution thereof and will furnish such records, if adversely determinedinformation and testimony and attend all such conferences, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXdiscovery proceedings, the Indemnified Person hearings, trials and appeals as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrequested in connection therewith. If the Indemnifying The Indemnified Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ its own counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofcase, but the fees and expenses of such counsel employed by the Indemnified Person shall will be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and Indemnitor does not promptly employ counsel reasonably satisfactory to such Indemnified Party to take charge of the defense of such action or (ii) such Indemnified Person. Neither Party reasonably concludes, based upon the opinion of its outside legal counsel, that there may be one or more legal defenses available to it, or to any other Indemnified Person nor the Indemnifying Party may consent who has submitted a Claim Notice to the entry Indemnitor, which are different from or additional to those available to the Indemnitor, in either of any judgment which events such reasonable fees and expenses will be borne by the Indemnitor (but in no event will the Indemnitor be required to pay the fees and expenses of more than one counsel employed by more than one Indemnified Party with respect to any claim) and the matter Indemnitor will not have the right to direct the defense of any such action on behalf of the Indemnified Party. The Indemnitor will have the right, in its sole discretion, to settle any claim for monetary damages for which indemnification has been sought and is available hereunder, except that neither Indemnitor nor the Indemnified Party will settle, compromise or enter into make any settlement with respect to the matter disposition of any claim under this Article X which judgment would or settlement does not release the other Party from all may result in liability to the third party with respect thereto Indemnified Party or Indemnitor, respectively, without the written consent of the other PartyIndemnitee or Indemnitor, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesrespectively. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgment.^ ^

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice The Lessor agrees to notify the Indemnifying Party Lessee of any claim made against it for which the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall Lessee may be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity liable pursuant to this Article IXSection 16 and, if the Indemnified Person Lessee requests, to contest or allow the Lessee to contest such claim. If any AESOP I Operating Lease Event of Default shall within thirty (30) days notify have occurred and be continuing, no contest shall be required, and any contest which has begun shall not be required to be continued to be pursued, unless arrangements to secure the Indemnifying Party payment of the same in writing, specifying in detail the basis of Lessee’s obligations pursuant to this Section 16 hereunder have been made and such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel arrangements are reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding Lessor. The Lessor shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in settle any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto claim without the consent of the other PartyLessee’s consent, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry withheld. Defense of any judgment or settlement with respect claim referred to such matter); provided that no settlement of a Joint Defense Proceeding in this Section 16 for which indemnity may be effected without required shall, at the consent option and request of both partiesthe Indemnified Person, be conducted by the Lessee. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify The Lessee will inform the Indemnified Person of any such claim and of the defense thereof and will provide copies of material documents relating to any such claim or defense to such Indemnified Person upon request. Such Indemnified Person may participate in any such defense at its own expense provided such participation does not interfere with respect the Lessee’s assertion of such claim or defense. The Lessee agrees that no Indemnified Person will be liable to the settlement Lessee for any claim caused directly or judgmentindirectly by the inadequacy of any Vehicle leased hereunder for any purpose or any deficiency or defect therein or the use or maintenance thereof or any repairs, servicing or adjustments thereto or any delay in providing or failure to provide such repairs, servicing or adjustments or any interruption or loss of service or use thereof or any loss of business, all of which shall be the risk and responsibility of the Lessee. The rights and indemnities of each Indemnified Person hereunder are expressly made for the benefit of, and will be enforceable by, each Indemnified Person notwithstanding the fact that such Indemnified Person is either no longer a party to (or entitled to receive the benefits of) this Agreement, or was not a party to (or entitled to receive the benefits of) this Agreement at its outset. Except as otherwise set forth herein, nothing herein shall be deemed to require the Lessee to indemnify the Lessor for any of the Lessor’s acts or omissions which constitute gross negligence or willful misconduct. This general indemnity shall not affect any claims of the type discussed above which the Lessee may have against the Manufacturer.

Defense of Claims. An Indemnified (a) (i) If any Buyer Indemnitee receives notice of the assertion or commencement of any claim, action or proceeding made or brought by any Person seeking who is not a Party or an Affiliate of a Party (a "Third Party Claim") with respect to which indemnification under this Article IX is to be sought from the Seller, the Buyer Indemnitee shall give the Seller reasonably prompt written notice thereof, but in any event such notice shall not be given later than twenty (20) calendar days after the Buyer Indemnitee's receipt of written notice of such Third Party Claim. Such written notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the Buyer Indemnifiable Loss that has been or may be sustained by the Buyer Indemnitee. The Seller will have the right to participate in or, by giving written notice to the Indemnifying Party of the facts and circumstances giving rise Buyer Indemnitee, to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory of any Third Party Claim by the Seller's own counsel, the cost for which shall be borne by the Seller to the Indemnified Person. Neither extent that Buyer Indemnifiable Losses exceed the Indemnified Person nor Indemnity Basket and shall, to such extent, be taken into account in calculating the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent aggregate amount of the other Party, which consent Seller's liability for Buyer Indemnifiable Losses under the Indemnity Cap. The Buyer Indemnitee shall not be unreasonably withheld (it being understood that cooperate in good faith in such defense at the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesBuyer Indemnitee's own expense. If there shall be a settlement the Seller elects not to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, assume the defense of which the Indemnifying any Third Party elected to assumeClaim, the Indemnifying Buyer Indemnitee may compromise or settle such Third Party Claim over the objection of the Seller, which compromise or settlement shall indemnify conclusively establish the Indemnified Person with respect Seller's liability pursuant to the settlement or judgmentthis Agreement.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written Upon receipt by Indemnitor of a notice from ----------------- Indemnitee with respect to the Indemnifying Party any claim of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any a third party whichagainst Indemnitee, if adversely determinedand acknowledgment by Indemnitor (whether after resolution of a dispute or otherwise) of Indemnitee's right to indemnification hereunder with respect to such claim, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, Indemnitor shall assume and control the defense of such Proceeding (and shall consult claim with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to Indemnitee and Indemnitee shall cooperate to the Indemnified Person extent reasonably requested by Indemnitor in defense or prosecution thereof and the payment of expenses; provided that shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by Indemnitor in the event any Proceeding connection therewith. If Indemnitor shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person acknowledge Indemnitee's right to full indemnity pursuant to this Article IX, the Indemnified Person may indemnification and elect to participate in assume the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceedingclaim, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person Indemnitee shall have the right to employ its own counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofcase, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of Indemnitee. If Indemnitor has assumed the Indemnified Person unless (a) defense of any claim against Indemnitee, Indemnitor shall have the employment thereof right to settle any claim for which indemnification has been specifically authorized by sought and is available hereunder; provided that, to the Indemnifying Party in writing extent that such settlement requires Indemnitee to take, or (b) prohibits Indemnitee from taking, any action or purports to obligate Indemnitee, then Indemnitor shall not settle such claim without the Indemnifying Party has failed to prior written consent of Indemnitee. If Indemnitor does not assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the a third party with respect thereto without claim and disputes Indemnitee's right to indemnification, Indemnitor shall have the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent right to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered participate in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which such claim through counsel of its choice, at Indemnitor's expense, and Indemnitee shall have control over the Indemnifying Party elected litigation and authority to assumeresolve such claim subject to this Section 12.3. If the Pledging Shareholders, as the Indemnifying Party shall indemnify indemnifying party, fail to give written notice to Purchaser, as the Indemnified Person with respect indemnified party, of the Pledging Shareholders' intention to contest or settle any such claim within 20 calendar days after Purchaser has notified the Pledging Shareholders that any such claim has been made in writing and received by Purchaser, or if any such notice is given but any such claim is not properly contested by the Pledging Shareholders, notwithstanding any provision herein to the settlement contrary, Purchaser shall have the right to satisfy and discharge the same by payment, compromise or judgmentotherwise, in accordance with the procedures set forth in the Escrow Agreement. Purchaser's rights, benefits and privileges, and the Pledging Shareholders' liabilities, obligations and commitments, under and pursuant to the Escrow Agreement are more specifically described therein and incorporated herein by this reference.

Defense of Claims. An Whenever any claim shall arise for indemnification hereunder, the party entitled to indemnification (the “Indemnified Person seeking indemnification under this Article IX Party”) shall give promptly notify the other party (the “Indemnifying Party”) in writing of the claim and, when known, the facts constituting the basis for such claim. The Indemnifying Party may, upon written notice to the Indemnified Party within 30 calendar days of receipt of the notice specified in the first sentence of this paragraph, assume the defense of any such claim if the Indemnifying Party of the facts and circumstances giving rise acknowledges to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Indemnified Party the Indemnified Person Party’s right to indemnity pursuant to this Article IXhereto in respect of the entirety of such claim. If the 24 Indemnifying Party assumes the defense of any such claim, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except select counsel reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control Indemnified Party to conduct the defense of such Proceeding (claim, shall take all steps reasonably necessary in the defense or settlement thereof and shall consult with at all times use commercially reasonable efforts to diligently and promptly pursue the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesresolution thereof. If the Indemnifying Party elects to assume and control shall have assumed the defense of a Proceedingany claim in accordance with this Section 16(b), it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such action claim, without the prior written consent of the Indemnified Party; provided, however, that (i) the Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (ii) the Indemnifying Party shall not be authorized to encumber any of the assets of the Indemnified Party or to agree to any restriction that would apply to the Indemnified Party or to its conduct of business; and (iii) a condition to any such settlement shall be a complete release of the Indemnified Party with respect to such claim which contains no admission of liability on the part of the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense thereofof any such action, but with its own counsel and at its own expense. The Indemnified Party shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the fees and expenses Indemnifying Party in the defense of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized any claim or Proceeding being defended by the Indemnifying Party in writing or (b) pursuant to this Section 16(b). If the Indemnifying Party has failed to does not assume the defense and employ counsel reasonably satisfactory of any claim resulting therefrom in accordance with the terms of this Section 16(b), the Indemnified Party may defend against such claim in such manner as it may deem appropriate, including settling such claim after giving notice of the same to the Indemnified Person. Neither Indemnifying Party, on such terms as the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentdeem appropriate.

Defense of Claims. An Indemnified Person seeking No right to indemnification under this Article IX Section 16 shall give written notice be available to any of Buyer's Indemnitee or Sellers' Indemnitee (the "Indemnified Party") unless such Indemnified Party shall have given to the Indemnifying party obliged to provide indemnification of such Indemnified Party (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts giving rise to any claim for indemnification hereunder promptly after receipt of knowledge by officers or management personnel of the Indemnified Party of the facts and circumstances giving rise upon which such claim is based; provided, however, that the failure of any Indemnified Party to so notify the Indemnitor shall not relieve the Indemnitor from any indemnification liability it may have except to the claim. In extent that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify the Indemnitor materially prejudices the Indemnitor's ability to defend against such claim. Upon receipt by the Indemnitor of the Claim Notice from an Indemnifying Indemnified Party shall not relieve the Indemnifying Party with respect to any claim of its obligations hereunder except to the extent a third party, such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall Indemnitor may assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party, and the payment of expenses; provided that Indemnified Party shall cooperate in the event any Proceeding defense or prosecution thereof and shall be brought or asserted by any third party whichfurnish such records, if adversely determinedinformation and testimony and attend all such REGISTRATION STATEMENT Page II-305 conferences, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXdiscovery proceedings, the Indemnified Person hearings, trials and appeals as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrequested in connection therewith. If the Indemnifying The Indemnified Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ its own counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofcase, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party to take charge of the defense of such action or (ii) such Indemnified Person. Neither the Party shall have reasonably concluded that there may be one or more legal defenses available to it, or to any other Indemnified Person nor the Indemnifying Party may consent who has submitted a Claim Notice to the entry Indemnitor, which are different from or additional to those available to the Indemnitor, in either of any judgment which events such fees and expenses shall be borne by the Indemnitor (but in no event shall the Indemnitor be required to pay the fees and expenses of more than one counsel employed by more than one Indemnified Party with respect to any claim) and the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent Indemnitor shall not be unreasonably withheld (it being understood that have the extent right to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, direct the defense of which any such action on behalf of the Indemnifying Party elected to assume, the Indemnifying Indemnified Party. The Indemnified Party shall indemnify the Indemnified Person with respect give written notice to the Indemnitor of any proposed settlement or judgmentof any claim, which settlement the Indemnitor may reject in its reasonable judgment within ten (10) days of receipt of such notice. The Indemnitor shall have the right, in its sole discretion, to settle any claim for monetary damages for which indemnification has been sought and is available hereunder.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim which may give rise to indemnity under this Article IX shall give written notice to ARTICLE VIII resulting from or arising out of any claim or Proceeding against an Indemnitee by a person that is not a party hereto, the Indemnifying Party of the facts and circumstances giving rise may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice sent at any time to the claim. In that regardrelevant Indemnitee, assume the defense of any such claim or Proceeding if any the Indemnifying Party with respect to such claim or Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle acknowledges to the Indemnified Person Indemnitee the Indemnitee's right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, reasonably satisfactory to this Article IXsuch Indemnitee, the Indemnified Person shall within thirty (30) days notify that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent in full if such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such claim or Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesis decided adversely. If the Indemnifying Party elects to assume and control assumes the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if any such Proceeding is not a Joint Defense claim or Proceeding, the Indemnified Person Indemnifying Party shall have select counsel reasonably acceptable to such Indemnitee to conduct the right to employ counsel separate from counsel employed by defense of such claim or Proceeding, shall take all steps reasonably necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party in any such action and to participate in shall have assumed the defense thereofof any claim or Proceeding in accordance with this SECTION 8.5, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed shall be authorized to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemnitee; PROVIDED, HOWEVER, that the Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment either concurrently with respect the effectiveness thereof or shall obtain and deliver to such Indemnitees prior to the matter or enter into any execution of such settlement with respect to a general release executed by the matter which judgment or settlement does person not release the other Party from all liability to the third a party with respect thereto without the consent of the other Partyhereto, which consent general release shall release such Indemnitee from any liability in such matter; PROVIDED, FURTHER, that the Indemnifying Party shall not be unreasonably withheld (it being understood authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that the extent would apply to which any Party will be obligated Indemnitee or to pay for Damages resulting from its conduct of business; and PROVIDED, FURTHER, that a condition to any such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement affiliates, officers, employees, consultants and agents with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesclaim. If there Such Indemnitee shall be a settlement entitled to which participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which any claim or Proceeding being defended by the Indemnifying Party elected pursuant to assumethis SECTION 8.5. If the Indemnifying Party does not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this SECTION 8.5, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If the Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or Proceeding or the amount of or nature of any such settlement, the Indemnifying Party shall indemnify have the Indemnified Person with respect burden to prove by a preponderance of the settlement evidence that such Indemnitee did not defend such claim or judgmentProceeding in a reasonably prudent manner.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim that may give ----------------- rise to indemnity under this Article IX Section 9 resulting from or arising out of any claim or Proceeding (as defined in Section 9.5 below) against any Indemnitee by a Person that is not a party hereto, the Indemnifying Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim) but shall give not be obligated to, upon written notice to the Indemnifying Party relevant Indemnitee, assume the defense of the facts and circumstances giving rise to the claim. In that regard, any such claim or Proceeding if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party with respect to such claim or Proceeding acknowledges to the Indemnitee the Indemnitee's right to indemnify pursuant hereto the extent provided herein (as such claim may have been modified through written agreement of the same in writingParties) and provides assurances, specifying in detail the basis of reasonably satisfactory to such claim and the facts pertaining thereto; provided Indemnitee, that the failure to so notify an Indemnifying Party shall not relieve be financially able to satisfy such claim to the extent provided herein if such claim or Proceeding is decided adversely; provided, however, that nothing set forth herein shall be deemed to require the Indemnifying Party of its obligations hereunder except to waive any cross-claims or counterclaims for Damages the Indemnifying Party may have against the Indemnitee. The Indemnitee shall be entitled to retain separate counsel, reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so electsthe Indemnitee shall determine, shall assume and control upon the defense written advice of such Proceeding (and shall consult with counsel, that an actual or potential conflict of interest exists between the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Indemnifying Party and the payment of expenses; provided that Indemnitee in the event any Proceeding connection with such claim or Proceeding. The Indemnifying Party shall be brought or asserted by any third party which, if adversely determined, would not entitle obligated to pay the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the reasonable fees and expenses of such joint defense will be shares equally separate counsel to the extent the Indemnitee is entitled to indemnification by the Indemnifying Party with respect to such parties and the employment of counsel shall be reasonably satisfactory to both partiesclaim or Proceeding under this Section 9.4. If the Indemnifying Party elects to assume and control assumes the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if any such Proceeding is not a Joint Defense claim or Proceeding, the Indemnified Person Indemnifying Party shall have select counsel reasonably acceptable to such Indemnitee to conduct the right to employ counsel separate from counsel employed by defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party in any such action and to participate in shall have assumed the defense thereofof any claim or Proceeding in accordance with this Section 9.4, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed shall be authorized to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding; provided, however, that the Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with respect the effectiveness thereof; provided, further, that the Indemnifying Party shall not be authorized to encumber any of the matter assets of any Indemnitee or enter into to agree to any settlement with respect restriction that would apply to the matter which judgment any Indemnitee or settlement does not release the other Party from all liability to the third party with respect thereto its conduct of business without the prior written consent of the other PartyIndemnitee; and provided, which consent shall not be unreasonably withheld (it being understood further, that the extent a condition to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement Affiliates, directors, officers, employees an agents with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesclaim, including any reasonably foreseeable collateral consequences thereof. If there Such Indemnitee shall be a settlement entitled to which participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which any claim or Proceeding being defended by the Indemnifying Party elected pursuant to assume, this Section 9.4. If the Indemnifying Party shall indemnify does not assume the Indemnified Person defense of any claim or Proceeding resulting therefrom in accordance with respect the terms of this Section 9.4, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the settlement Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or judgmentProceeding or the amount or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner.

Defense of Claims. An Indemnified Person seeking indemnification (a) In connection with any claim that may give rise to indemnity under this Article IX shall give resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party may, subject to Section 9.04(b), assume the defense of any such claim or Proceeding (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, if all Indemnifying Parties with respect to such claim or Proceeding jointly acknowledge to the Indemnitee its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, reasonably satisfactory to such Indemnitee, that the Indemnifying Parties will be financially able to satisfy such claim in full if such claim or Proceeding is decided adversely. Prior to the assumption by an Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if defense of any Proceeding shall be brought claim or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IXProceeding, the Indemnified Person shall within thirty (30) days notify Indemnitee may make such appearances and filings with respect thereto as the Indemnitee reasonably determines to be necessary or appropriate. If the Indemnifying Party Parties assume the defense of the same in writing, specifying in detail the basis of any such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve or Proceeding, the Indemnifying Party of its obligations hereunder except Parties shall select counsel reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control Indemnitee to conduct the defense of such Proceeding (claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall consult with at all times diligently and promptly pursue the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesresolution thereof. If the Indemnifying Party elects to assume and control Parties shall have assumed the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such any claim or Proceeding is not a Joint Defense Proceedingin accordance with this Section 9.04, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person Parties shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment with respect to the matter arising from, any such claim or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto Proceeding, without the prior written consent of such Indemnitee, PROVIDED that (i) the other PartyIndemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof, which consent (ii) the 37 Indemnifying Parties shall not be unreasonably withheld authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business, and (it being understood that the extent iii) a condition to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement Affiliates, officers, employees, consultants and agents with respect to such matterclaim. Subject to Section 9.04(b); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there , such Indemnitee shall be a settlement entitled to which the Indemnifying Party consents or a final judgment for the plaintiff participate in any Proceeding, (but not control) the defense of which any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party elected to assume, Parties in the defense of any claim or Proceeding being defended by the Indemnifying Party shall indemnify Parties pursuant to this Section 9.04. If the Indemnified Person Indemnifying Parties do not assume the defense of any claim or Proceeding resulting therefrom in accordance with respect to the settlement terms of this Section 9.04(a), such Indemnitee may defend against such claim or judgmentProceeding.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim that may give rise to indemnity under this Article IX Section 7 resulting from or arising out of any claim or Proceeding against an Indemnitee by a person or entity that is not a party hereto, the Indemnifying Party may but shall give not be obligated to (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or proceeding if the Indemnifying Party of the facts and circumstances giving rise with respect to such claim or Proceeding acknowledges to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Indemnitee the Indemnified Person Indemnitee's right to indemnity pursuant hereto to this Article IXthe extent provided herein (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, the Indemnified Person shall within thirty (30) days notify satisfactory to such Indemnitee, that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and to the facts pertaining theretoextent provided herein if such claim or Proceeding is decided adversely; provided provided, however, that the failure nothing set forth herein shall be deemed to so notify an Indemnifying Party shall not relieve require the Indemnifying Party of its obligations hereunder except to waive any crossclaims or counterclaims the Indemnifying Party may have against the Indemnified Party for damages. The Indemnified Party shall be entitled to retain separate counsel, reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so electsthe Indemnified Counsel shall determine, shall assume upon the written advice of counsel, that claims of or defenses available to the Indemnifying Party and control the defense of Indemnified Party in connection with such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding may differ. The Indemnifying Party shall be brought or asserted by any third party which, if adversely determined, would not entitle obligated to pay the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the reasonable fees and expenses of such joint defense will be shares equally separate counsel to the extent the Indemnified Party is entitled to indemnification by the Indemnifying Party with respect to such parties and the employment of counsel shall be reasonably satisfactory to both partiesclaim or Proceeding under this Section 7.4. If the Indemnifying Party elects to assume and control assumes the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if any such Proceeding is not a Joint Defense claim or Proceeding, the Indemnified Person Indemnifying Party shall have select counsel reasonably acceptable to such Indemnitee to conduct the right to employ counsel separate from counsel employed by defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party in any such action and to participate in shall have assumed the defense thereofof any claim or Proceeding in accordance with this Section 7.4, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed shall be authorized to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, but only with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the prior written consent of the other Partysuch Indemnitee, which consent shall not be unreasonably withheld (it being understood withheld; provided, however, that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Indemnifying Party shall pay or cause to be considered in determining whether it is reasonable for paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided, further, that the Indemnifying Party shall not be authorized to withhold its consent from encumber any of the entry assets of any judgment Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, directors, officers, employees and agents with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesclaim, including any reasonably foreseeable collateral consequences hereof. If there Such Indemnitee shall be a settlement entitled to which participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which any claim or Proceeding being defended by the Indemnifying Party elected pursuant to assume, this Section 7.4. If the Indemnifying Party shall indemnify does not assume the Indemnified Person defense of any claim or Proceeding resulting therefrom in accordance with respect the terms of this Section 7.4, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or proceeding after giving notice of the same to the settlement Indemnifying Party, on such terms as such Indemnitee may deem appropriate, but only with the prior written consent of Indemnitee which consent shall not be unreasonably withheld. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or judgmentProceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner.

Defense of Claims. An Indemnified In connection with any claim that may ----------------- give rise to indemnity under this Article IX resulting from or arising out ---------- of any action, suit, proceeding or arbitration against an Indemnitee by a Person seeking that is not a party hereto (a "Third Party ----------- Claim"), the Indemnifying Parties shall be entitled to participate in the ----- defense thereof and, if they so notify the Indemnitees within 30 days (or as soon as practicable, if the nature of the claim so requires), to assume the defense thereof with counsel selected by the Indemnifying Parties. Such Indemnifying Parties may assume the defense of a Third Party Claim subject to a reservation of rights as to the determination of whether such Third Party Claim is subject to indemnification hereunder, and such Indemnifying Party shall be entitled to a prompt reimbursement from the Indemnitee (solely to the extent of the Escrow Account in the case of an Indemnitee that is a Seller Indemnitee) to the extent the Indemnifying Party is found not responsible for indemnification under this Article IX IX. Should the ---------- Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall give written notice not be liable to the Indemnitee for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnitees shall cooperate in the defense or prosecution thereof provided, that, the Indemnifying Party shall compensate the Indemnitees for all their out of pocket expenses related thereto and that any such action by the Indemnitees shall be during regular business hours, under reasonable circumstances and shall not unreasonably disrupt the business of the Indemnitees. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of the facts records and circumstances giving rise information that are reasonably relevant to the claimsuch Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. In that regard, if any Proceeding shall be brought Whether or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify not the Indemnifying Party assumes the defense of the same in writinga Third Party Claim, specifying in detail the basis of no Indemnitee shall admit any liability with respect to, or settle, compromise or discharge, such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Third Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed Claim without the Indemnifying Party. The Indemnifying Party, if it so elects, 's prior written consent (which consent shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect theretonot be unreasonably withheld), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control assumes the defense of a ProceedingThird Party Claim, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may not consent to the entry of any judgment with respect to the matter or enter entry into any settlement with respect to the matter which judgment or settlement does not release the other any Third Party from all liability to the third party with respect thereto Claim without the prior written consent of the other Party, which consent shall Indemnitees (not to be unreasonably withheld (it being understood that withheld) unless the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or proposed settlement involves only the payment of money damages and includes an absolute and unconditional release of the Indemnitees from any liability in connection with respect to such matter); provided that no settlement the Third Party Claim and would not in the reasonable opinion of a Joint Defense Proceeding may be effected without the consent of both partiesIndemnitees adversely affect the Indemnitees' ongoing business operations. If there shall be a settlement to which the Indemnifying Party consents fails to defend or a final judgment for the plaintiff in if, after commencing or undertaking any Proceeding, the defense of which the Indemnifying Party elected to assumesuch defense, the Indemnifying Party fails to prosecute or withdraws from such defense, the Indemnitee shall indemnify have the Indemnified Person with respect right to undertake the defense or settlement or judgmentthereof, at the Indemnifying Party's expense.

Defense of Claims. An Indemnified (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Person seeking or Governmental Entity that is not a party to this Agreement (a "Third Party Claim") against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 calendar days after receipt of notice of such Third Party Claim; provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article IX 16 to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall give be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof if such Indemnifying Party of the facts delivers a written agreement in form and circumstances giving rise substance satisfactory to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Indemnitee agreeing to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify indemnify the Indemnifying Party of the same in writing, specifying in detail the basis of with respect to such claim and the facts pertaining theretoThird Party Claim; provided that notwithstanding anything herein to the failure to so notify an contrary, the Indemnifying Party shall not relieve have no right to assume or continue the defense of any Third Party Claim (and the Indemnitee shall have the exclusive right to defend it) if (i) the Indemnitee reasonably determines that the Indemnifying Party does not have sufficient financial resources to defend or discharge such Third Party Claim, (ii) if a conflict of its obligations hereunder except to the extent such failure shall have harmed interest is presented for the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the Party from defense of the Third Party Claim, (iii) the Indemnitee reasonably determines that an adverse determination would adversely affect the business operations of the Indemnitee in any material respect, or (iv) the Indemnifying Party is not vigorously defending such Proceeding (and shall consult with Third Party Claim, as reasonably determined by the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought Indemnitee. Whether or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume the investigation and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingany Third Party Claim, the Indemnified Person Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party in writing or Party, (bii) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory of such Third Party Claim within a reasonable time after receipt of notice thereof, or (iii) the named parties to the Indemnified Person. Neither the Indemnified Person nor proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may consent be available to the entry of any judgment Indemnitee that are in conflict with respect those available to the matter or enter into any settlement with respect to Indemnifying Party. Notwithstanding the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assumeforegoing, the Indemnifying Party shall indemnify not be liable for the fees and disbursements of more than one counsel for all Indemnified Person Parties in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party's willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (A) the amount of the settlement offer that the Indemnitee declined to accept or judgment(B) the aggregate Indemnifiable Losses of the Indemnitee with respect to such claim.

Defense of Claims. An Indemnified (a) If any Indemnitee receives notice of the ----------------- assertion of any claim or cause of action or of the commencement of any action, proceeding or investigation by any Person seeking (including any Governmental Authority) who is not a party to this Agreement or an Affiliate of such a party (a "Third ----- Party Claim") against such Indemnitee, with respect to which an Indemnifying ----------- Party is obligated to provide indemnification under this Article IX shall Agreement, the Indemnitee will give such Indemnifying Party prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such Third Party Claim. Such notice will describe the Third Party Claim in reasonable detail, and will indicate the estimated amount, if reasonably practicable, of the Indemnifiable Loss that has been or may be sustained by the Indemnitee. The Indemnifying Party shall assume the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense; provided, however, that the -------- ------- Indemnifying Party shall not have the right to assume the defense of any Third Party Claim if the named parties to any such action or proceeding (including any impleaded parties) include both the Indemnitee and the Indemnifying Party and the Indemnitee shall have been advised by counsel that there are one or more legal or equitable defenses available to the Indemnitee which are different from or additional to those available to the Indemnifying Party so as to result in a potential conflict of interest between the facts Indemnitee and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party; then, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by Indemnitee notifies the Indemnifying Party in any such action and writing that the Indemnitee elects to participate in the defense thereof, but the fees and expenses of such employ separate counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify not have the Indemnified Person right to assume the defense of the Indemnitee, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or proceeding in separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to local counsel if appropriate) at any time for all Indemnitees. Notwithstanding anything in this Section 8.3, if Seller is an Indemnifying Party with respect to ----------- a Third Party Claim relating to, resulting from or arising out of (i) Taxes of Seller incurred on or before the settlement Closing Date, or judgment(ii) an Indemnifiable Loss under Section 8.2(a)(iii) (collectively, "Seller's Third Party Claims"), then ------------------- --------------------------- Seller, by giving written notice to the Indemnitee, shall at all times have the right to assume the defense of such Third Party Claim. In the event the Indemnifying Party shall not have assumed the defense and the Indemnitee is conducting the defense, the Indemnifying Party shall be entitled to monitor the defense by the Indemnitee, to consult with the Indemnitee with respect to such claim and to be kept fully informed by the Indemnitee of such Third Party Claim, which shall include, without limitation, the right to review and obtain copies of all pleadings, motions and correspondence, and other non-privileged documentation and information in connection with such Third Party Claim, in each case as the Indemnifying Party may reasonably request. The Indemnifying Party and the Indemnitee shall make available to each other and their attorneys and accountants as reasonably requested all books and records relating to Third Party Claims, and the parties hereto agree to render to each other such assistance as they may reasonably require to ensure the proper and adequate defense of any Third Party Claim. The right to assume the defense of any Third Party Claim shall include, without limitation, the right to assert, for the benefit of the Indemnitee, cross-claims and counterclaims in connection with such Third Party Claim which are directly related to such Third Party Claim.

Defense of Claims. An Any Buyer Indemnitee or Seller Indemnitee ----------------- (the "Indemnified Person Party") seeking indemnification under this Article IX Agreement shall ----------------- give written notice to the Indemnifying party obligated to provide indemnification to such Indemnified Party (the "Indemnitor") a ---------- notice (a "Claim Notice") describing in reasonable detail the facts giving rise ------------ to any claim for indemnification hereunder promptly upon learning of the facts and circumstances giving rise to the existence of such claim. In that regardUpon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall Indemnitor may assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other expenses related thereto; and the payment of expenses; provided that Indemnified Party shall cooperate in the event any Proceeding defense or prosecution thereof and shall be brought or asserted by any third party whichfurnish such records, if adversely determinedinformation and testimony and attend all such conferences, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXdiscovery proceedings, the Indemnified Person hearings, trials and appeals as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrequested in connection therewith. If the Indemnifying Party elects to Indemnitor does not assume and control the defense of a Proceedingthereof, it will provide notice thereof within thirty (30) days after the Indemnitor shall similarly cooperate with the Indemnified Person has given notice of the matter and if Party in such Proceeding is not a Joint Defense Proceeding, the defense or prosecution. The Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofor prosecution of any lawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party to take charge of the defense of such action or (ii) such Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry shall have reasonably concluded that there exists a significant conflict of any judgment interest with respect to the matter or enter into conduct of such Indemnified Party's defense by the Indemnitor, in either of which events such fees and expenses shall be borne by the Indemnitor and the Indemnitor shall not have the right to direct the defense of any settlement with respect such action on behalf of the Indemnified Party. The Indemnitor shall have the right, in its sole discretion, to settle any claim solely for monetary damages for which indemnification has been sought and is available hereunder, provided that the Indemnitor shall not agree to the matter -------- settlement of any claim which judgment or constitutes the subject of a Claim Notice which settlement does not release in the other reasonable opinion of the Indemnified Party from all liability to would have an adverse continuing effect on the third party with respect thereto business of the Indemnified Party without the prior written consent of the other Indemnified Party. The Indemnified Party shall give written notice to the Indemnitor of any proposed settlement of any suit, which consent settlement the Indemnitor may, if it shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, have assumed the defense of the suit, reject in its reasonable judgment within 10 days of receipt of such notice. Notwithstanding the foregoing the Indemnified Party shall have the right to pay or settle any suit for which indemnification has been sought and is available hereunder, provided that, if the Indemnifying Party elected to assumedefense of such claim shall have been -------- assumed by the Indemnitor, the Indemnifying Indemni-fied Party shall indemnify the Indemnified Person with respect automatically be deemed to the settlement or judgmenthave waived any right to indemnification hereunder.

Defense of Claims. An Indemnified Person seeking (a) If any Indemnitee receives notice of the assertion of any claim or of the commencement of any action or proceeding by any Third Party (a “Third Party Claim”) against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) calendar days after receipt of notice of such Third Party Claim; provided, however, that the failure of the Indemnitee to so notify the Indemnifying Party shall only relieve the Indemnifying Party from its obligation to indemnify the Indemnitee pursuant to this Article IX XV to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall give be entitled, upon written notice to the Indemnifying Party of Indemnitee, to assume the facts investigation and circumstances giving rise to the claim. In that regarddefense thereof; provided, if any Proceeding shall be brought or asserted by any third party whichhowever, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve have the right to control the defense unless and until the Indemnifying Party of its obligations hereunder except agrees in writing to indemnify the Indemnitee with respect to such Third Party Claim, subject to the extent such failure shall have harmed the Indemnifying Partyapplicable limitations set forth herein. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought Whether or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume the investigation and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingany Third Party Claim, the Indemnified Person Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the fees and expenses disbursements of such separate counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (ai) the employment thereof of such separate counsel has been specifically authorized in writing by the Indemnifying Party in writing or Party, (bii) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory of such Third Party Claim within a reasonable time after receipt of notice thereof, or (iii) the named parties to the Indemnified Person. Neither the Indemnified Person nor proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnifying Party and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or more defenses that may consent be available to the entry of any judgment Indemnitee that are not available to or are in conflict with respect those available to the matter or enter into any settlement with respect to Indemnifying Party. Notwithstanding the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assumeforegoing, the Indemnifying Party shall indemnify not be liable for the fees and disbursements of more than one counsel for all Indemnified Person Parties in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any Third Party Claim that would lead to liability or create any financial or other obligation on the part of the Indemnitee unless such settlement includes as an unconditional term thereof the release of the Indemnitee from all liability in respect of such Third Party Claim. If a settlement offer solely for money damages is made by the applicable third party claimant (which offer provides for a full and unconditional release of the Indemnitee), and the Indemnifying Party notifies the Indemnitee in writing of the Indemnifying Party’s willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee, the Indemnitee may continue to contest such claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (A) the amount of the settlement offer that the Indemnitee declined to accept plus the Indemnifiable Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or judgment(B) the aggregate Indemnifiable Losses of the Indemnitee with respect to such claim.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX If the Indemnifying Party elects to defend a CLAIM pursuant to Section 15.6.1, it shall give written notice to the Indemnifying Indemnified Party within fifteen (15) days after the receipt of the notice from the Indemnified Party of the facts potential indemnifiable CLAIM which involves (and circumstances giving rise continues to the claim. In involve) solely monetary damages; provided, that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30a) days notify the Indemnifying Party of expressly agrees in such notice that, as between the same in writing, specifying in detail the basis of such claim Indemnifying Party and the facts pertaining thereto; provided that Indemnified Party, the failure to so notify an Indemnifying Party shall not relieve be solely obligated to satisfy and discharge the CLAIM, subject to the terms, conditions and limitations of this AGREEMENT, and (b) the Indemnifying Party makes reasonably adequate provisions to ensure the Indemnified Party of its obligations hereunder except to the extent such failure shall have harmed ability of the Indemnifying PartyParty to satisfy the full amount of any adverse monetary judgment that may result such conditions (the "Litigation Conditions"). The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult Subject to compliance with the Indemnified Person with respect thereto)Litigation Conditions, including the employment of Indemnifying Party shall retain counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle Party to represent the Indemnified Person Party and shall pay the fees and expenses of such counsel related to full indemnity pursuant to this Article IXsuch proceeding. In any such proceeding, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless Party unless: (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing and the Indemnified Party shall have mutually agreed to the retention of such counsel, or (b) the Indemnifying Party has failed named parties to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor any such proceeding (including any impleaded parties) include both the Indemnifying Party may consent and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. All such fees and expenses shall be reimbursed as they are incurred. If the Litigation Conditions are not met within twenty (20) days after receipt of notice of the CLAIM, the Indemnifying Party shall be bound by any reasonable defense or settlement made by the Indemnified Party and shall reimburse the Indemnified Party for any and all damages, fines, fees, penalties, judgments, deficiencies, losses and expenses (including without limitation interest, court costs, reasonable fees of attorneys, accountants and other experts or other expenses of litigation or other proceedings or of any claim, default or assessment) of the Indemnified Party related to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment defense or settlement does of the CLAIM. If the Litigation Conditions have been met, then the Indemnified Party shall not release the other Party from all liability to the third party with respect thereto settle any CLAIM for which it is seeking indemnification without the prior consent of the other Indemnifying Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any withheld. The Indemnified Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which shall, if requested by the Indemnifying Party consents or a final judgment for the plaintiff Party, cooperate in any Proceeding, all reasonable respects in the defense of which such CLAIM that is being managed and controlled by the Indemnifying Party elected to assume, the Party. The Indemnifying Party shall indemnify not, without the written consent of the Indemnified Person with Party, effect any settlement of any pending or threatened proceeding in respect to of which the Indemnified Party is, or arising out of the same set of facts could have been, a Party and indemnity could have been sought hereunder by the Indemnified Party, unless such settlement or judgmentincludes an unconditional release of the Indemnified Party from all liability on claims that are the subject matter of such proceeding.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim which may give rise to indemnity under this Article IX shall give written notice to ARTICLE VIII resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party of the facts and circumstances giving rise may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice sent at any time to the claim. In that regardrelevant Indemnitee, assume the defense of any such claim or Proceeding if any the Indemnifying Party with respect to such claim or Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle acknowledges to the Indemnified Person Indemnitee the Indemnitee's right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, reasonably satisfactory to this Article IXsuch Indemnitee, the Indemnified Person shall within thirty (30) days notify that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent in full if such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such claim or Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesis decided adversely. If the Indemnifying Party elects to assume and control assumes the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if any such Proceeding is not a Joint Defense claim or Proceeding, the Indemnified Person Indemnifying Party shall have select counsel reasonably acceptable to such Indemnitee to conduct the right to employ counsel separate from counsel employed by defense of such claim or Proceeding, shall take all steps reasonably necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party in any such action and to participate in shall have assumed the defense thereofof any claim or Proceeding in accordance with this SECTION 8.05, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed shall be authorized to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemnitee; PROVIDED, HOWEVER, that the Indemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment either concurrently with respect the effectiveness thereof or shall obtain and deliver to such Indemnitees prior to the matter or enter into any execution of such settlement with respect to a general release executed by the matter which judgment or settlement does Person not release the other Party from all liability to the third a party with respect thereto without the consent of the other Partyhereto, which consent general release shall release such Indemnitee from any liability in such matter; PROVIDED, FURTHER, that the Indemnifying Party shall not be unreasonably withheld (it being understood authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that the extent would apply to which any Party will be obligated Indemnitee or to pay for Damages resulting from its conduct of business; and PROVIDED, FURTHER, that a condition to any such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement Affiliates, officers, employees, consultants and agents with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesclaim. If there Such Indemnitee shall be a settlement entitled to which participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which any claim or Proceeding being defended by the Indemnifying Party elected pursuant to assumethis SECTION 8.05. If the Indemnifying Party does not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this SECTION 8.05, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If the Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or Proceeding or the amount of or nature of any such settlement, the Indemnifying Party shall indemnify have the Indemnified Person with respect burden to prove by a preponderance of the settlement evidence that such Indemnitee did not defend such claim or judgmentProceeding in a reasonably prudent manner.

Defense of Claims. An Any Buyer Indemnitee or Seller Indemnitee ----------------- (the "Indemnified Person Party") seeking indemnification under this Article IX Agreement shall ----------------- give written notice to the Indemnifying party obligated to provide indemnification to such Indemnified Party of (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail ---------- ------------ the facts and circumstances giving rise to any claim for indemnification hereunder promptly upon learning of the existence of such claim. In that regardUpon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall Indemnitor may assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other expenses related thereto; and the payment of expenses; provided that Indemnified Party shall cooperate in the event any Proceeding defense or prosecution thereof and shall be brought or asserted by any third party whichfurnish such records, if adversely determinedinformation and testimony and attend all such conferences, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXdiscovery proceedings, the Indemnified Person hearings, trials and appeals as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrequested in connection therewith. If the Indemnifying Party elects to Indemnitor does not assume and control the defense of a Proceedingthereof, it will provide notice thereof within thirty (30) days after the Indemnitor shall similarly cooperate with the Indemnified Person has given notice of the matter and if Party in such Proceeding is not a Joint Defense Proceeding, the defense or prosecution. The Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofor prosecution of any lawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party to take charge of the defense of such action or (ii) such Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry shall have reasonably concluded that there exists a significant conflict of any judgment interest with respect to the matter or enter into conduct of such Indemnified Party's defense by the Indemnitor, in either of which events such fees and expenses shall be borne by the Indemnitor and the Indemnitor shall not have the right to direct the defense of any settlement with respect such action on behalf of the Indemnified Party. The Indemnitor shall have the right, in its sole discretion, to settle any claim solely for monetary damages for which indemnification has been sought and is available hereunder, provided that the Indemnitor shall not agree to the matter which judgment or -------- settlement does not of any claim without the prior written consent of the Indemnified Party unless such settlement includes an unconditional release of the other Indemnified Party from all liability arising out of such claim. The Indemnified Party shall give written notice to the third party with respect thereto without the consent Indemnitor of the other Partyany proposed settlement of any suit, which consent settlement the Indemnitor may, if it shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, have assumed the defense of the suit, reject in its reasonable judgment within 10 days of receipt of such notice. Notwithstanding the foregoing the Indemnified Party shall have the right to pay or settle any suit for which indemnification has been sought and is available hereunder, provided that if the Indemnifying Party elected to assumedefense of such claim shall -------- have been assumed by the Indemnitor, the Indemnifying Indemni fied Party shall indemnify the Indemnified Person with respect automatically be deemed to the settlement or judgmenthave waived any right to indemnification hereunder.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim that may give rise to indemnity under this Article IX Section 9 resulting from or arising out of any claim or Proceeding against an Indemnitee by a person or entity that is not a party hereto, the Indemnifying Party may but shall give not be obligated to (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or Proceeding if the Indemnifying Party of the facts and circumstances giving rise with respect to such claim or Proceeding acknowledges to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Indemnitee the Indemnified Person Indemnitee's right to indemnity pursuant hereto to this Article IXthe extent provided herein (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, the Indemnified Person shall within thirty (30) days notify satisfactory to such Indemnitee, that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and to the facts pertaining theretoextent provided herein if such claim or Proceeding is decided adversely; provided provided, however, that the failure nothing set forth herein shall be deemed to so notify an Indemnifying Party shall not relieve require the Indemnifying Party of its obligations hereunder except to waive any crossclaims or counterclaims the Indemnifying Party may have against the Indemnified Party for damages. The Indemnified Party shall be entitled to retain separate counsel, reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto)Party shall determine, including upon the employment written advice of counsel reasonably satisfactory to counsel, that an actual or potential conflict of interest exists between the Indemnifying Party and the Indemnified Person and the payment of expenses; provided that Party in the event any Proceeding connection with such Proceeding. The Indemnifying Party shall be brought or asserted by any third party which, if adversely determined, would not entitle obligated to pay the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the reasonable fees and expenses of such joint defense will be shares equally separate counsel to the extent the Indemnified Party is entitled to indemnification by the Indemnifying Party with respect to such parties and the employment of counsel shall be reasonably satisfactory to both partiesclaim or Proceeding under this Section 9.4. If the Indemnifying Party elects to assume and control assumes the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if any such Proceeding is not a Joint Defense claim or Proceeding, the Indemnified Person Indemnifying Party shall have select counsel reasonably acceptable to such Indemnitee to conduct the right to employ counsel separate from counsel employed by defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party in any such action and to participate in shall have assumed the defense thereofof any claim or Proceeding in accordance with this Section 9.4, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed shall be authorized to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the prior written consent of such Indemnitee, not to be unreasonably withheld; provided, however, that the other PartyIndemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided, which consent further, that the Indemnifying party shall not be unreasonably withheld (it being understood authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that the extent would apply to which any Party will be obligated Indemnitee or to pay for Damages resulting from its conduct of business; and provided, further, that a condition to any such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement Affiliates, Associates, directors, officers, employees and agents with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesclaim, including any reasonably foreseeable collateral consequences thereof. If there Such Indemnitee shall be a settlement entitled to which participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, Associates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which any claim or Proceeding being defended by the Indemnifying Party elected pursuant to assume, this Section 9.4. If the Indemnifying Party shall indemnify does not assume the Indemnified Person defense of any claim or Proceeding resulting therefrom in accordance with respect the terms of this Section 9.4, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or Proceeding after giving notice of the same to the settlement Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or judgmentProceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner.

Defense of Claims. An Indemnified Person seeking (a) In the event that any Purchaser Indemnitee or Seller Indemnitee shall incur any Losses in respect of which indemnification under may be sought by such party pursuant to this Article IX X, the party seeking such indemnification (the “Indemnitee”) shall assert a claim for indemnification by giving prompt written notice thereof (the “Notice”), which shall describe in reasonable detail the facts and circumstances upon which the asserted claim for indemnification is based, to the party providing indemnification (Purchaser or the Sellers, as the case may be, the “Indemnitor”) and, in the case of a Purchaser Indemnitee, to the Escrow Agent, and shall thereafter keep the Indemnitor reasonably informed with respect thereto; provided that failure of the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the Indemnitor of any of its obligations hereunder, except to the extent (and only to the extent) that the Indemnitor is actually and materially prejudiced by such failure. In case any third party claim is asserted or third party action or proceeding is brought against any Indemnitee in respect of which indemnification may be sought by the Indemnitee pursuant to this Article X (a “Third Party Claim”), the Indemnitor shall have the right to assume, conduct and control the defense, compromise or settlement thereof, by written notice to the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party Indemnitee of its obligations hereunder except intention to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it do so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice receipt of the matter Notice, at the Indemnitor’s own expense, and if thereupon to prosecute in the name and on behalf of the Indemnitee any available cross-claims, counter-claims or third party claims arising with respect to the Third Party Claim; provided that, prior to the Indemnitor assuming control of such Proceeding is not a Joint Defense Proceedingdefense it shall first confirm to the Indemnitee in writing that, subject to the limitations set forth in this Agreement, the Indemnified Person Indemnitee shall be entitled to indemnification in respect of such Third Party Claim; provided, that, the Indemnitor shall not have the right to employ counsel separate from counsel employed by without the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense prior written consent of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed Indemnitee to assume the defense and employ counsel of any Third Party Claim if such Third Party Claim (i) relates to any actual or alleged criminal proceeding, action, indictment, allegation or investigation or (ii) seeks an injunction or equitable relief against the Indemnitee that would reasonably satisfactory be expected to be material. If the Indemnified Person. Neither Indemnitor shall assume the Indemnified Person nor defense of such Third Party Claim, (i) the Indemnifying Party may Indemnitee shall not consent to the entry of any judgment or enter into any settlement with respect regards to such Third Party Claim without the prior written consent of the Indemnitor and (ii) the Indemnitor shall not consent to the matter entry of any judgment or enter into any settlement with respect to the matter which judgment or settlement does not release the other such Third Party from all liability to the third party with respect thereto Claim without the prior written consent of the other Party, Indemnitee (which consent shall not be unreasonably withheld withheld, conditioned or delayed) unless in the case of clause (it being understood that ii), the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement provides solely for the payment of money by the Indemnitor (or, in the case of the Sellers, the Escrow Agent from the Escrow Account for an amount less than the Escrow Amount then in the Escrow Account), the Indemnitor makes (or instructs the Escrow Agent to make) such payment (excluding, in all cases, any applicable Deductible portion to be paid or borne by an Indemnitee under Section 10.4(c)) and the Indemnitee receives an unconditional release with respect to such matterThird Party Claim. Notwithstanding the assumption by the Indemnitor of the defense of any Third Party Claim as provided in this Section 10.3(a), and without limiting the Indemnitor’s right to assume, conduct and control the defense, compromise or settlement thereof, the Indemnitee shall be permitted to join in the defense of such Third Party Claim and to employ counsel at its own expense; provided that no settlement if the Indemnitor assumes control of a Joint Defense Proceeding may be effected without such defense and the consent of both parties. If there shall be a settlement Indemnitee has been advised by counsel in writing that the Indemnitor and the Indemnitee have an actual conflict with respect to which the Indemnifying Party consents or a final judgment for the plaintiff in any such Proceeding, the defense reasonable fees and expenses of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect counsel to the settlement or judgmentIndemnitee solely in connection with such Proceeding shall be considered “Losses” for purposes of this Agreement.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice The Stockholders may elect to the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto)any Claim, including the employment of counsel reasonably satisfactory to the Buyer Indemnified Person Parties and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party whichexpenses related thereto, if adversely determined, would (a) the Stockholders acknowledge their obligation to indemnify the Buyer Indemnified Parties for any Losses resulting from such Claim and provide reasonable evidence to the Buyer Indemnified Parties of its financial ability to satisfy such obligation; (b) the Claim does not entitle seek to impose any liability or obligation on the Buyer Indemnified Person Parties other than for money damages; and (c) the Claim does not relate to full indemnity pursuant to this Article IX, the Buyer Indemnified Person may elect to participate in the joint defense of Parties' relationship with their customers or employees. If such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties conditions are satisfied and the employment of counsel shall be reasonably satisfactory to both parties. If the Buyer Indemnifying Party elects Parties select to assume and control the defense of a ProceedingClaim, it then (i) the interests represented by the Stockholders will provide notice thereof within thirty (30) days after not be liable for any settlement of such Claim effected without the Indemnified Person has given notice consent of the matter Buyer Indemnifying Parties, which consent will not be unreasonably withheld; (ii) the Stockholders may settle such Claim without the consent of the Buyer Indemnified Parties; and if such Proceeding is not a Joint Defense Proceeding, (iii) the Buyer Indemnified Person shall have the right to Parties may employ separate counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the Buyer Indemnified Parties will be responsible for the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (aA) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has Stockholders have failed to adequately assume the defense and of such Claim or to employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto or (B) a conflict of interest exists between the interests of the Buyer Indemnified Parties and the interests represented by the Stockholders that requires representation by separate counsel, in which case the fees and expenses of such separate counsel will be paid by the Stockholders. If such conditions are not satisfied, the Buyer Indemnified Parties may assume and control the defense of the Claim; provided that the Buyer Indemnified Parties may not settle any such Claim without the consent of the other PartyStockholders, which consent shall will not be unreasonably withheld (it being understood withheld, and further provided that the extent Stockholders are given a reasonable opportunity to which any Party will be obligated to pay for Damages resulting from participate in such matter as compared to defense (at the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matterStockholders' expense); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgment.

Defense of Claims. An Indemnified Person seeking indemnification (a) In connection with any claim under this Article IX shall give X resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or Proceeding if all Indemnifying Party of the facts and circumstances giving rise Parties with respect to such claim or Proceeding jointly acknowledge to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Indemnitee its right to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party hereto in respect of the same in writing, specifying in detail the basis entirety of such claim (as such claim may be subsequently modified through written agreement of the parties or arbitration hereunder) and the facts pertaining thereto; provided provide assurances, reasonably satisfactory to such Indemnitee, that the failure Indemnifying Parties will be financially able to so notify an Indemnifying Party shall not relieve satisfy such claim in full if such claim or Proceeding is decided adversely. If the Indemnifying Party Parties assume the defense of its obligations hereunder except to the extent any such failure shall have harmed claim or Proceeding, the Indemnifying Party. The Indemnifying Party, if it so elects, Parties shall assume and control select counsel reasonably acceptable to such Indemnitee to conduct the defense of such Proceeding (claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall consult with at all times vigorously, diligently and promptly pursue the Indemnified Person with respect thereto), including resolution thereof and keep the employment of counsel Buyer and its attorneys reasonably satisfactory informed as to the Indemnified Person progress of the defense and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesproposed settlement. If the Indemnifying Party elects to assume and control Parties shall have assumed the defense of any claim or Proceeding in accordance with this Section 10.04, the Indemnifying Parties shall be authorized to consent to a settlement of, or the entry of any judgment arising from any claim or Proceeding, it will provide notice thereof within thirty (30) days after with the Indemnified Person has given notice prior written consent of the matter and such Indemnitee; PROVIDED, HOWEVER, that no consent shall be required from such Indemnitee if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; PROVIDED, FURTHER, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and PROVIDED FURTHER, that a condition to any such action settlement shall be a complete release of such Indemnitee and its Affiliates, officers, employees, consultants and agents with respect to such claim. Such Indemnitee shall be entitled to participate in the defense thereofof any such action at its own cost and expense. Each Indemnitee shall, but and shall cause each of its Affiliates, officers, employees, consultants and agents to, reasonably cooperate with the fees and expenses Indemnifying Parties in the defense of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized any claim or Proceeding being defended by the Indemnifying Party in writing or (b) the Indemnifying Party has failed Parties pursuant to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentthis Section 10.04.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX shall give written notice Upon receipt of a Claim Notice from an Indemnitee with respect to the Indemnifying any Third-Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IXClaim, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure Indemnitor shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects right to assume and control the defense thereof (and any related settlement negotiations) with counsel reasonably satisfactory to such Indemnitee, and the Indemnitee shall cooperate in all reasonable respects in such defense. The Indemnitee shall have the right to employ separate counsel at such Indemnitee’s expense in any action or claim and to participate in the defense thereof; provided, however, that the reasonable fees and expenses of a Proceeding, it will provide notice thereof counsel employed by the Indemnitee shall be at the expense of the Indemnitor if such counsel is retained pursuant to the following sentence or if the employment of such counsel has been specifically authorized (in the reasonable discretion of the Indemnitor) in writing by the Indemnitor. If the Indemnitor does not notify the Indemnitee within thirty (30) days after the Indemnified Person has given notice receipt of the matter and if Claim Notice of its intention to assume the defense of such Proceeding is not a Joint Defense ProceedingThird-Party Claim, the Indemnified Person Indemnitee shall have the right to defend the claim with counsel of its choosing reasonably satisfactory to the Indemnitor. Notwithstanding anything to the contrary contained in this Section 8.4, (i) the Indemnitee shall have the right to employ counsel separate from counsel employed by counsel, at its own expense, if there shall be available to the Indemnifying Party in any such action Indemnitee one or more defenses or one or more counterclaims which conflicts with one or more defenses or one or more counterclaims available to the Indemnitor and (ii) the Indemnitor shall not be entitled to control (but shall be entitled participate at its own expense in the defense thereofof), but and the fees and expenses Indemnitee (at its sole expense) shall be entitled to have sole control over, the defense or settlement of any Third-Party Claim to the extent such Third-Party Claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnitee which, if successful, would reasonably be expected to have a Material Adverse Effect on the Indemnitee; provided that if an Indemnitee assumes sole control of the defense or settlement of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing order, injunction, non-monetary or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment other equitable relief with respect to any Third-Party Claim pursuant to the matter or enter into any settlement foregoing clause (ii), the Indemnitee shall not be entitled to indemnification from the Indemnitor with respect to the matter which judgment or settlement does not release the other Party from all liability Losses associated therewith. The Indemnitee shall send a written notice to the third party with respect thereto without the consent Indemnitor of the other Partyany proposed settlement of any claim, which consent shall not be unreasonably withheld settlement the Indemnitor may reject, in its reasonable judgment, within thirty (it being understood that the extent 30) days of receipt of such notice. Failure to which any Party will be obligated to pay for Damages resulting from reject such matter as compared to the other Party notice within such 30-day period shall be considered in determining whether it is reasonable for deemed an acceptance of such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentsettlement.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim that may give rise to indemnity under this Article IX Section 7 resulting from or arising out of any claim or Proceeding against an Indemnitee by a person or entity that is not a party hereto, the Indemnifying Party may but shall give not be obligated to (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or proceeding if the Indemnifying Party of the facts and circumstances giving rise with respect to such claim or Proceeding acknowledges to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Indemnitee the Indemnified Person Indemnitee's right to indemnity pursuant hereto to this Article IXthe extent provided herein (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, the Indemnified Person shall within thirty (30) days notify satisfactory to such Indemnitee, that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and to the facts pertaining theretoextent provided herein if such claim or Proceeding is decided adversely; provided provided, however, that the failure nothing set forth herein shall be deemed to so notify an Indemnifying Party shall not relieve require the Indemnifying Party of its obligations hereunder except to waive any crossclaims or counterclaims the Indemnifying Party may have against the Indemnified Party for damages. The Indemnified Party shall be entitled to retain separate counsel, reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto)Counsel shall determine, including upon the employment written advice of counsel reasonably satisfactory to counsel, that an actual or potential conflict of interest exists between the Indemnifying Party and the Indemnified Person and the payment of expenses; provided that Party in the event any Proceeding connection with such Proceeding. The Indemnifying Party shall be brought or asserted by any third party which, if adversely determined, would not entitle obligated to pay the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the reasonable fees and expenses of such joint defense will be shares equally separate counsel to the extent the Indemnified Party is entitled to indemnification by the Indemnifying Party with respect to such parties and the employment of counsel shall be reasonably satisfactory to both partiesclaim or Proceeding under this Section 7.4. If the Indemnifying Party elects to assume and control assumes the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if any such Proceeding is not a Joint Defense claim or Proceeding, the Indemnified Person Indemnifying Party shall have select counsel reasonably acceptable to such Indemnitee to conduct the right to employ counsel separate from counsel employed by defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party in any such action and to participate in shall have assumed the defense thereofof any claim or Proceeding in accordance with this Section 7.4, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed shall be authorized to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the prior written consent of such Indemnitee, not to be unreasonably withheld; provided, however, that the other PartyIndemnifying Party shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided, which consent further, that the Indemnifying Party shall not be unreasonably withheld (it being understood authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that the extent would apply to which any Party will be obligated Indemnitee or to pay for Damages resulting from its conduct of business; and provided, further, that a condition to any such matter as compared to the other Party settlement shall be considered in determining whether it is reasonable for a complete release of such Party to withhold Indemnitee and its consent from the entry of any judgment or settlement Affiliates, directors, officers, employees and agents with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both partiesclaim, including any reasonably foreseeable collateral consequences thereof. If there Such Indemnitee shall be a settlement entitled to which participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which any claim or Proceeding being defended by the Indemnifying Party elected pursuant to assume, this Section 7.4. If the Indemnifying Party shall indemnify does not assume the Indemnified Person defense of any claim or Proceeding resulting therefrom in accordance with respect the terms of this Section 7.4, such Indemnitee may defend against such claim or Proceeding in such manner as it may deem appropriate, including settling such claim or proceeding after giving notice of the same to the settlement Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or judgmentProceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner.

Defense of Claims. An Indemnified Person seeking indemnification under this Article IX The Indemnitor shall give written notice select (subject to the Indemnifying Party Indemnitee’s reasonable approval) the attorneys to defend any matter subject to indemnification and/or taking all actions necessary or appropriate to resolve, -50- TERMINALS SALE AND PURCHASE AGREEMENT (CENTER, XXXXXX (EAST), WACO AND WASKOM) EXECUTION VERSION defend, and/or settle such matters, and shall be entitled to contest, on its own behalf and on the Indemnitee’s behalf, the existence or amount of the facts and circumstances any obligation, cost, expense, debt or liability giving rise to the such claim. In that regard, if any Proceeding Nothing in this Section 9.5(b) shall be brought construed as prohibiting the Indemnitee from participating in the defense (which may include hiring its own counsel) in any matter subject to indemnification, as long as the Indemnitee does so at its own expense, unless and to the extent that the Indemnitor or asserted by any third party which, if adversely determined, would entitle the Indemnified Person an Affiliate is also subject to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided Indemnitee has determined in good faith that the failure Indemnitor has a conflict of interest vis-à-vis the Indemnitee and/or the Indemnitee has defenses available to so notify an Indemnifying Party shall it that are not relieve the Indemnifying Party of its obligations hereunder except available to the extent such failure shall have harmed Indemnitor, in which case the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding Indemnitor shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") responsible for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) Indemnitee’s counsel. The Indemnitor shall keep the employment thereof has been specifically authorized by Indemnitee fully and timely informed as to actions taken on such matters. The Indemnitee shall cooperate fully with the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense Indemnitor and employ its counsel reasonably satisfactory and shall provide them reasonable access to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent Indemnitee’s employees, consultants, agents, attorneys, accountants, and files to the entry of any judgment extent necessary or appropriate to defend or resolve the matter, the Indemnitor reimbursing the Indemnitee with respect to the matter or enter into reasonable cost of any settlement with such access. With respect to any matter for which a Party has an indemnification and/or defense obligation under this Agreement, the matter which judgment or settlement does not release Parties shall maintain a joint defense privilege, where applicable, in connection with such matters for the other Party from all liability to the third party with respect thereto without the consent Party’s post-Closing communications and those of the other Partytheir respective Affiliates and Authorized Representatives, which consent shall not be unreasonably withheld (it being understood that post-Closing communications concern the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect matters subject to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the indemnification and/or defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentobligation.

Defense of Claims. An Indemnified Person seeking Any party making a claim for indemnification ----------------- under this Article IX Section 7.03 (an "Indemnitee") shall give written notice to notify the Indemnifying Party indemnifying party ---------- (an "Indemnitor") of the claim in writing promptly after receiving written ---------- notice of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation or facts and circumstances giving rise to such claim for indemnification, describing the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty amount thereof (30) days notify the Indemnifying Party of the same in writingif known and quantifiable), specifying in detail and the basis of such claim and the facts pertaining theretothereof; provided provided, that the failure to so notify an Indemnifying Party Indemnitor shall not relieve the Indemnifying Party Indemnitor of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying PartyIndemnitor. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with With respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party whichclaim, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel any Indemnitor shall be reasonably satisfactory to both parties. If the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and entitled to participate in the defense thereof, but the fees and expenses of such counsel employed by action, lawsuit, proceeding, investigation or other claim giving rise to Indemnitee's claim for indemnification at its expense, and at its option (subject to the Indemnified Person limitations set forth below) shall be at entitled to appoint lead counsel of such defense with a nationally recognized reputable counsel acceptable to Indemnitee; provided, that prior to Indemnitor assuming control of such defense it shall first (i) verify to the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party Indemnitee in writing or that such Indemnitor shall be fully responsible (bwith no reservation of any rights) the Indemnifying Party has failed for all liabilities and obligations relating to assume the defense and employ counsel reasonably satisfactory such claim for indemnification, subject to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent limitations set forth in Section 7.03(c) and that it will provide full indemnification (whether or not otherwise required hereunder) to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement Indemnitee with respect to such matter)action, lawsuit, proceeding, investigation, or other claim giving rise to such claim for indemnification hereunder and (ii) furnish the Indemnitee with evidence which, in the sole judgment of Indemnitee, is and will be sufficient to satisfy any such liability; provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceedingfurther, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgment.that:

Defense of Claims. (a) An Indemnified Person seeking Party shall, after obtaining actual knowledge, thereof, promptly notify Borrower in writing of any action, suit or proceeding brought against such Indemnified Party which could give rise to any payment by Borrower or the Master Servicer under Section 10.1 (a “Claim”) as to which indemnification under this Article IX shall give written notice to the Indemnifying is sought (unless Borrower or Master Servicer theretofore has notified such Indemnified Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining theretoClaim); provided except that the failure to so notify an Indemnifying Party give such notice shall not relieve release Borrower or the Indemnifying Party Master Servicer, as the case may be, from any of its obligations hereunder except under this Agreement, however Borrower’s or the Master Servicer’s, as the case may be, obligations shall be reduced to the extent that failure to promptly give notice of any action, suit or proceeding against such failure shall have harmed Indemnified Party (i) impairs Borrower or the Indemnifying PartyMaster Servicer, as the case may be, from defending such Claim or (ii) increases the amount for which Borrower or the Master Servicer, as the case may be, is liable in accordance with Section 10.1. The Indemnifying PartyWithin forty-five days after receiving notice from an Indemnified Party of any Claim as to which indemnification is sought, Borrower or the Master Servicer, as the case may be, if it is so electsdesires may elect in writing, shall subject to the provisions of the following paragraph, to control, at its sole cost and expense, and to assume and control full responsibility for, the defense of such Proceeding (and shall consult Claim with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory acceptable to the Indemnified Person and Parties in their reasonable discretion; provided, that the payment Borrower has agreed in writing on or prior to the assumption of expenses; provided that in such defense to indemnify such Indemnified Party for such Claim. If Borrower or the event any Proceeding shall be brought or asserted by any third party whichMaster Servicer, if adversely determinedas the case may be, would not entitle elects to assume the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for Claim, it shall keep the Indemnified Party which is the expenses subject of such joint defense will be shares equally by proceeding fully apprised of the status of the proceeding and shall provide such parties and the employment of counsel shall be Indemnified Party with all information with respect to such proceeding as such Indemnified Party may reasonably satisfactory to both partiesrequest. If Borrower or Master Servicer, as the Indemnifying Party elects case may be, does not elect to assume control, as provided for above, and control the defense of a Proceeding, provided it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingpreventing from assuming such control pursuant to the provisions of clause (b) below, the applicable Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofshall, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of Borrower or the Indemnified Person unless (a) Master Servicer, as the employment thereof has been specifically authorized case may be, supply Borrower with all such information and documents reasonably requested by Borrower or Master Servicer, as the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party case may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentbe.

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim that may give rise to ----------------- indemnity under this Article IX Section 9 resulting from or arising out of any claim or Proceeding against an Indemnitee by a person or entity that is not a party hereto, the Indemnifying Party may but shall give not be obligated to (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or Proceeding if the Indemnifying Party of the facts and circumstances giving rise with respect to such claim or Proceeding acknowledges to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Indemnitee the Indemnified Person Indemnitee's right to indemnity pursuant hereto to this Article IXthe extent provided herein (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provides assurances, the Indemnified Person shall within thirty (30) days notify satisfactory to such Indemnitee, that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and to the facts pertaining theretoextent provided herein if such claim or Proceeding is decided adversely; provided provided, however, that the failure nothing set --------- ------- forth herein shall be deemed to so notify an Indemnifying Party shall not relieve require the Indemnifying Party of its obligations hereunder except to waive any crossclaims or counterclaims the Indemnifying Party may have against the Indemnified Party for damages. The Indemnified Party shall be entitled to retain separate counsel, reasonably acceptable to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto)Party shall determine, including upon the employment written advice of counsel reasonably satisfactory to the Indemnified Person and the payment counsel, that an actual or potential conflict of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both parties. If interest exists between the Indemnifying Party elects to assume and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if Party in connection with such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the . The Indemnifying Party in any such action and shall be obligated to participate in pay the defense thereof, but the reasonable fees and expenses of such separate counsel employed by to the extent the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized Party is entitled to indemnification by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense claim or Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgment.under this

Defense of Claims. An Indemnified Person seeking If a party hereto seeks indemnification under this Article IX Section 11.2, such party (the “Indemnified Party”) shall give written notice as soon as reasonably practicable to the other party (the “Indemnifying Party Party”) of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding suit, action, claim, liability or obligation (a “Proceeding”) shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Party to indemnity pursuant to this Article IXSection 11.2, the Indemnified Person Party shall within thirty (30) 30 days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed prejudiced the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding or permit its predecessors (a “Permitted Designee”) to assume such defense if the Indemnifying Party is required to permit such Permitted Designee to assume and control such defense pursuant to any agreement it has made with such Permitted Designee (provided that, in either case, the Indemnifying Party and, if applicable, its Permitted Designee shall consult with the Indemnified Person Party with respect theretothereto and keep the Indemnified Party fully apprised of such defense), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person Party to full indemnity pursuant to this Article IXSection 11.2, the Indemnified Person Party may elect to participate in the a joint defense of such Proceeding (a "“Joint Defense Proceeding"”) for which the expenses of such joint defense will be shares equally shared by such parties in proportion to each party’s liability and the employment of counsel shall be reasonably satisfactory to both parties; provided further that if the participation of such Indemnified Party would void any indemnity to which any Indemnifying Party may be entitled to receive from any third party, upon receipt of an unconditional written undertaking from the Indemnifying Party to compensate the Indemnified Party for any and all Losses in connection with such Proceeding, the Indemnifying Party may elect to exclude the Indemnified Party from participation in such Proceeding. If the Indemnifying Party elects to assume and control the defense of a ProceedingProceeding (either directly or through its Permitted Designee), it will provide notice thereof within thirty (30) 30 days after the Indemnified Person Party has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party or its Permitted Designee, as the case may be, in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person Party shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgment.unless

Defense of Claims. An Indemnified Person seeking indemnification In connection with any claim that may give rise ----------------- to indemnity under this Article IX resulting from or arising out of any claim or Proceeding against an Indemnitee by a Person that is not a party hereto, the Indemnifying Party may but shall give not be obligated to (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or Proceeding if the Indemnifying Party of the facts and circumstances giving rise with respect to such claim or Proceeding jointly acknowledge to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle Indemnitee the Indemnified Person Indemnitee's right to indemnity pursuant hereto to this Article IXthe extent provided herein (as such claim may have been modified through written agreement of the parties or arbitration hereunder) and provide assurances, the Indemnified Person shall within thirty (30) days notify satisfactory to such Indemnitee, that the Indemnifying Party of the same in writing, specifying in detail the basis of will be financially able to satisfy such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent provided herein if such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such claim or Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesis decided adversely. If the Indemnifying Party elects to assume and control assumes the defense of a any such claim or Proceeding, the Indemnifying Party shall select counsel reasonably acceptable to such Indemnitee to conduct the defense of such claim or Proceeding, shall take all steps necessary in the defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim or Proceeding in accordance with this Section 9.5, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any such claim or Proceeding, without the prior written consent of such Indemnitee; provided, however, that the Indemnifying Party shall, subject -------- ------- to the provisions of Section 9.1, pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided further, that the Indemnifying Party shall not be authorized to -------- ------- encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided -------- further, that a condition to any such settlement shall be a complete release of ------- such Indemnitee and its Affiliates, directors, officers, employees and agents with respect to such claim, including any reasonably foreseeable collateral consequences thereof. Such Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, directors, officers, employees and agents to, cooperate fully with the Indemnifying Party in the defense of any claim or Proceeding being defended by the Indemnifying Party pursuant to this Section 9.5. If the Indemnifying Party does not assume the defense of any claim or Proceeding resulting therefrom in accordance with the terms of this Section 9.5, such Indemnitee may defend against such claim or Proceeding in such manner as it will provide notice thereof within thirty (30) days may deem appropriate, including settling such claim or Proceeding after the Indemnified Person has given giving notice of the matter and same to the Indemnifying Party, on such terms as such Indemnitee may deem appropriate. If any Indemnifying Party seeks to question the manner in which such Indemnitee defended such claim or Proceeding or the amount of or nature of any such settlement, such Indemnifying Party shall have the burden to prove by a preponderance of the evidence that such Indemnitee did not defend such claim or Proceeding in a reasonably prudent manner. Notwithstanding the above, if such a claim or Proceeding is not a Joint Defense Proceedinginvolves injunctive relief affecting the business operations of Purchaser or relates to the Intellectual Property Rights included in the Purchased Assets, the Indemnified Person Purchaser shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in control the defense thereofof the claim or Proceeding, but and the reasonable fees and expenses of such counsel employed by the Indemnified Person to Purchaser and other reasonable out-of-pocket expenses of Purchaser shall be at the expense "Damages" for purposes of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory a this Article IX, to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent extent such claim or Proceeding is ultimately determined to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentan indemnifiable claim.

Defense of Claims. An Indemnified Person Any Buyer Indemnitee or Seller Indemnitee (the "INDEMNIFIED PARTY") seeking indemnification under this Article IX Agreement shall give to the party obligated to provide indemnification to such Indemnified Party (the "INDEMNITOR") a written notice to the Indemnifying Party of (a "CLAIM NOTICE") describing in reasonable detail the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall claim for indemnification hereunder within thirty (30) days notify the Indemnifying Party of learning of the same in writing, specifying in detail the basis existence of such claim; provided, however, that the Indemnified Party's failure to provide such notice in not more than thirty (30) days shall not preclude the Indemnified Party from being indemnified for such claim and or demand, except to the facts pertaining thereto; provided extent that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party give timely notice results in a forfeiture of its obligations hereunder except substantive defenses available to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying PartyUpon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, if it so elects, shall such Indemnitor may assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other expenses related thereto; and the payment of expenses; provided that Indemnified Party shall cooperate in the event any Proceeding defense or prosecution thereof and shall be brought or asserted by any third party whichfurnish such records, if adversely determinedinformation and testimony and attend all such conferences, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXdiscovery proceedings, the Indemnified Person hearings, trials and appeals as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrequested in connection therewith. If the Indemnifying Party elects to Indemnitor does not assume and control the defense of a Proceedingthereof, it will provide notice thereof within thirty (30) days after the Indemnitor shall similarly cooperate with the Indemnified Person has given notice of the matter and if Party in such Proceeding is not a Joint Defense Proceeding, the defense or prosecution. The Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofor prosecution of any lawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, but the reasonable fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person Party unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ Indemnitor shall not have promptly employed counsel reasonably satisfactory to the such Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry take charge of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of such action. The Indemnitor shall have the right, in its sole discretion, to settle any claim solely for monetary damages for which indemnification has been sought and is available hereunder. The Indemnified Party shall give written notice to the Indemnifying Indemnitor of any proposed settlement of any suit, which settlement the Indemnitor may, if it shall have assumed the defense of the suit, reject in its reasonable judgment within ten (10) days of receipt of such notice. Notwithstanding the foregoing the Indemnified Party elected shall have the right to assumepay or settle any suit for which indemnification has been sought and is available hereunder, provided that, if the defense of such claim shall have been assumed by the Indemnitor, the Indemnifying Indemnified Party shall indemnify the Indemnified Person with respect automatically be deemed to the settlement or judgmenthave waived any right to indemnification hereunder.

Defense of Claims. An Indemnified Person seeking In connection with any claim for which indemnification has been sought under this Article IX shall give resulting from or arising out of any claim or Action against an Indemnitee by a Person that is not a Party hereto (a "THIRD PARTY CLAIM"), the Indemnifying Party may assume the defense of any such claim or Action (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the Indemnifying Party of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrelevant Indemnitee. If the Indemnifying Party elects to assume and control Parties shall have assumed the defense of any claim or Action in accordance with this Section 9.4, the Indemnifying Parties shall be authorized to consent to a Proceedingsettlement of, it will provide or the entry of any judgment arising from, any such claim or Action, without the prior written consent of such Indemnitee; provided, however, that the Indemnifying Parties shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof (less any unapplied portion of the Minimum Amount and up to the Maximum Amount); provided, further, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such settlement shall be a complete release of such Indemnitee and its Affiliates, officers, employees, consultants and agents with respect to such claim. Each Indemnitee shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense. Each Indemnitee shall, and shall cause each of its Affiliates, officers, employees, consultants and agents to, cooperate fully with the Indemnifying Parties in the defense of any claim or Action being defended by the Indemnifying Parties pursuant to this Section 9.4. If the Indemnifying Parties do not assume the defense of any claim or Action resulting therefrom in accordance with the terms of this Section 9.4, such Indemnitee must defend against such claim or Action. The Indemnitee shall not pay, or permit to be paid, any part of the Third Party Claim unless the Indemnifying Parties consent in writing to such payment, such consent not to be unreasonably withheld or delayed, or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnifying Party is entered against the Indemnitee for such Third Party Claim. If the Indemnitee controls the defense of any such claim or Action in accordance with this Section 9.4 and proposes to settle any such claim or Actions prior to a final judgment thereon or to forego any appeal with respect thereto, then the Indemnitee shall give the Indemnifying Party prompt written notice thereof within thirty (30) days after and the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person Indemnifying Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing settlement or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, reassume the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement such claim or judgmentAction.

Defense of Claims. An Indemnified Person seeking indemnification (a) In connection with any claim which may give rise to indemnity under this Article IX shall give written notice to 8 resulting from or arising out of any claim or proceeding against an Indemnitee by a person that is not a party hereto, the Indemnifying Party shall have the right to, upon written notice sent at any time to the Indemnitee, participate in or assume control of the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis defense of such claim or proceeding, at its own expense, and shall take all steps reasonably necessary in the facts pertaining thereto; provided that defense or settlement thereof and shall at all times diligently and promptly pursue the failure to so notify an Indemnifying Party resolution thereof. Such Indemnitee shall not relieve cooperate fully with the Indemnifying Party Party, subject to reimbursement for actual out-of-pocket expenses incurred by such Indemnitee as the result of its obligations hereunder except to the extent such failure shall have harmed a request by the Indemnifying Party. The Such Indemnitee shall have the right to approve legal counsel selected by the Indemnifying Party, if it so elects, which approval shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall not be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesunreasonably withheld. If the Indemnifying Party elects to assume and control of the defense of a Proceedingany third-party claim or proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person Indemnitee shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofof such claim or proceeding with legal counsel of its own selection; provided, but however, that such Indemnitee shall pay the fees and expenses of such counsel employed unless the named parties to any such claim or proceeding include both such Indemnitee and the Indemnifying Party and such Indemnitee has been advised by legal counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnified Person shall be Indemnifying Party (in which case, if such Indemnitee informs the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized by Indemnifying Party, the Indemnifying Party in writing or (b) shall not have the Indemnifying Party has failed right to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter such claim or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent proceeding on behalf of the other Partysuch Indemnitee), which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify not, in connection with any one claim or proceeding, be liable for the Indemnified Person with respect to the settlement or judgmentfees and expenses of more than one separate firm of attorneys at any time for such Indemnitee.

Defense of Claims. An Any Buyer Indemnitee or Seller Indemnitee (the ----------------- "Indemnified Person Party") seeking indemnification under this Article IX Agreement shall give written notice to the Indemnifying party obligated to provide indemnification to such Indemnified Party of (the "Indemnitor") a notice (a "Claim Notice") describing in reasonable detail the facts and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party claim for indemnification hereunder promptly upon learning of the same in writing, specifying in detail the basis existence of such claim and shall give the facts pertaining thereto; provided that Indemnitor a copy of any such claim, process and legal proceedings. Upon receipt by the failure Indemnitor of a Claim Notice from an Indemnified Party with respect to so notify an Indemnifying Party shall not relieve the Indemnifying Party any claim of its obligations hereunder except to the extent a third party, such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall Indemnitor may assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other expenses related thereto; and the payment of expenses; provided that Indemnified Party shall cooperate in the event any Proceeding defense or prosecution thereof and shall be brought or asserted by any third party whichfurnish such records, if adversely determinedinformation and testimony, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXattend all such conferences, the Indemnified Person discovery proceedings, hearings, trials and appeals and take such other action and assign such other documents as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory requested in connection therewith and as may be necessary to both partiesdefend such claim or other proceeding in a timely manner. If the Indemnifying Party elects to Indemnitor does not assume and control the defense of a Proceedingthereof, it will provide notice thereof within thirty (30) days after the Indemnitor shall similarly cooperate with the Indemnified Person has given notice of the matter and if Party in such Proceeding is not a Joint Defense Proceeding, the defense or prosecution. The Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofor prosecution of any lawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless Party unless: (ai) the employment thereof has been specifically authorized by Indemnitor shall not have promptly employed counsel to take charge of the Indemnifying Party in writing defense of such action; or (bii) such Indemnified Party, upon the Indemnifying Party has failed to assume the defense and employ counsel reasonable advice of its counsel, shall have reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry concluded that there exists a significant conflict of any judgment interest with respect to the matter conduct of such Indemnified Party's defense by the Indemnitor, in any of which events, such fees and expenses of not more than one additional counsel for all of the Indemnified Parties shall be borne by the Indemnitor, in any of which events, such reasonable fees and expenses of not more than one additional counsel for all of the Indemnified Parties shall be borne by the Indemnitor, and the Indemnitor shall not have the right to direct the defense of any such action on behalf of the Indemnified Party. Prior to paying or enter into settling any claim against which an Indemnitor is, or may be, obligated under this Agreement to indemnify the Indemnified Party, the Indemnified Party must first supply the Indemnitor with a copy of a final court judgment or decree holding the Indemnified Party liable on such claim, or failing such judgment or decree, must first receive the written approval of the terms and conditions of such settlement with respect from the Indemnitor. The Indemnitor shall have the right to settle any claim against it, subject to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent prior written approval of the other Indemnified Party, which consent approval shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentwithheld.

Defense of Claims. An Indemnified A. If any Indemnitee receives notice of the assertion of any Claim or of the commencement of any action or proceeding by any Person seeking or Governmental Authority that is not a party to this Agreement (a “Third Party Claim”) against such Indemnitee, with respect to which an Indemnifying Party is obligated to provide indemnification under this Article IX Agreement, the Indemnitee will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 20 calendar days after receipt of notice of such Third Party Claim; 103 provided, however, that the failure of the Indemnitee to notify the Indemnifying Party shall give only relieve the indemnifying party from its obligation to indemnify the Indemnitee pursuant to this Section 11.3 to the extent that the Indemnifying Party is materially prejudiced by such failure (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnifying Party shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof if such Indemnifying Party of the facts delivers a written agreement in form and circumstances giving rise to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control the defense of such Proceeding (and shall consult with the Indemnified Person with respect thereto), including the employment of counsel substance reasonably satisfactory to the Indemnified Person and Indemnitee agreeing to indemnify the payment of expensesIndemnifying Party with respect to such Third Party Claim; provided that in notwithstanding anything herein to the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXcontrary, the Indemnified Person may elect Indemnifying Party shall have no right to participate in assume or continue the joint defense of such Proceeding any Third Party Claim (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel Indemnitee shall be have the exclusive right to defend it) if the Indemnitee reasonably satisfactory determines that the Indemnifying Party does not have sufficient financial resources to both partiesdefend or discharge such Third Party Claim. If Whether or not the Indemnifying Party elects to assume the investigation and control the defense of a Proceeding, it will provide notice thereof within thirty (30) days after the Indemnified Person has given notice of the matter and if such Proceeding is not a Joint Defense Proceedingany Third Party Claim, the Indemnified Person Indemnitee shall have the right to employ one separate counsel (plus one separate from counsel employed by the Indemnifying Party in any such action local counsel) and to participate in the investigation and defense thereof; provided, but however, that the Indemnitee shall pay the reasonable fees and expenses disbursements of such counsel employed by separate counsel. Without the Indemnified Person shall be at the expense prior written consent of the Indemnified Person unless (a) the employment thereof has been specifically authorized by Indemnitee, the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or will not enter into any settlement with respect of any Third Party Claim that would lead to liability or create any financial or other obligation on the matter which judgment or part of the Indemnitee unless such settlement does not includes as an unconditional term thereof the release of the other Party Indemnitee from all liability to the third party with in respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any such Third Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentClaim.

Defense of Claims. An Indemnified Person seeking indemnification 9.4.1 In connection with any claim which may give rise to indemnity under this Article IX shall give Section 9 resulting from or arising out of any claim or proceeding against an Indemnitee by a person that is not a party hereto, the Indemnifying Party may (unless such Indemnitee elects not to seek indemnity hereunder for such claim), upon written notice to the relevant Indemnitee, assume the defense of any such claim or Proceeding if all Indemnifying Party of the facts and circumstances giving rise Parties with respect to such claim or proceeding jointly acknowledge in writing to the claim. In that regard, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person Indemnitee its right to indemnity pursuant hereto in respect of the entirety of such claim (as such claim may have been modified through written agreement of the parties) and provide in writing assurances, reasonably satisfactory to this Article IXsuch Indemnitee, that the Indemnified Person shall within thirty (30) days notify Indemnifying parties will be financially able to satisfy such claim in full if such claim or proceeding is decided adversely. If the Indemnifying parties assume the defense of any such claim or proceeding, the Indemnifying Party of the same in writing, specifying in detail the basis of shall select counsel reasonably acceptable to such claim and the facts pertaining thereto; provided that the failure Indemnitee to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and control conduct the defense of such Proceeding (claim or proceeding, shall take all steps necessary in the defense or settlement thereof and shall consult with at all times reasonably diligently and promptly pursue the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person and the payment of expenses; provided that in the event any Proceeding shall be brought or asserted by any third party which, if adversely determined, would not entitle the Indemnified Person to full indemnity pursuant to this Article IX, the Indemnified Person may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesresolution thereof. If the Indemnifying Party elects to assume and control Parties shall have assumed the defense of any claim or proceeding in accordance with this Section 9.4, the Indemnifying Parties shall be authorized to consent to a Proceedingsettlement of, it will provide notice thereof within thirty (30) days after or the Indemnified Person has given notice entry of any judgment arising from, any such claim or proceeding, with the consent of the matter and Indemnitee, which consent will be not unreasonably withheld or delayed; provided, that no such consent shall be required from such Indemnitee if such Proceeding is not a Joint Defense Proceeding, the Indemnified Person shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in Parties 42 shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; provided, further, that the Indemnifying Parties shall not be authorized to encumber any of the assets of any Indemnitee or to agree to any restriction that would apply to any Indemnitee or to its conduct of business; and provided, further, that a condition to any such action settlement shall be a complete release of such Indemnitee and its affiliates, officers, employees and, if named as a defendant, consultants and agents with respect to such claim. Each Indemnitee shall be entitled to participate in the defense thereofof any such action at its own cost and expense. Each Indemnitee shall, but and shall cause each of its affiliates, officers, employees, consultants and agents to, cooperate fully with the fees and expenses Indemnifying Parties in the defense of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (a) the employment thereof has been specifically authorized any claim or Proceeding being defended by the Indemnifying Party in writing or (b) the Indemnifying Party has failed Parties pursuant to assume the defense and employ counsel reasonably satisfactory to the Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter which judgment or settlement does not release the other Party from all liability to the third party with respect thereto without the consent of the other Party, which consent shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, the defense of which the Indemnifying Party elected to assume, the Indemnifying Party shall indemnify the Indemnified Person with respect to the settlement or judgmentthis Section 9.4.

Defense of Claims. An Any Buyer Indemnitee or Seller Indemnitee ----------------- (the "Indemnified Person Party") seeking indemnification under this Article IX Agreement shall ----------------- give written notice to the Indemnifying party obligated to provide indemnification to such Indemnified Party of (the "Indemnitor") a notice (a "Claim ---------- ----- Notice") describing in reasonable detail the facts and circumstances giving rise to any claim for ------ indemnification hereunder promptly upon learning of the existence of such claim. In that regardUpon receipt by the Indemnitor of a Claim Notice from an Indemnified Party with respect to any claim of a third party, if any Proceeding shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Person to indemnity pursuant to this Article IX, the Indemnified Person shall within thirty (30) days notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure shall have harmed the Indemnifying Party. The Indemnifying Party, if it so elects, shall Indemnitor may assume and control the defense of such Proceeding (and shall consult thereof with the Indemnified Person with respect thereto), including the employment of counsel reasonably satisfactory to the Indemnified Person Party and, in such event, shall agree to pay and otherwise discharge with the Indemnitor's own assets all judgments, deficiencies, damages, settlements, liabilities, losses, costs and legal and other expenses related thereto; and the payment of expenses; provided that Indemnified Party shall cooperate in the event any Proceeding defense or prosecution thereof and shall be brought or asserted by any third party whichfurnish such records, if adversely determinedinformation and testimony and attend all such conferences, would not entitle the Indemnified Person to full indemnity pursuant to this Article IXdiscovery proceedings, the Indemnified Person hearings, trials and appeals as may elect to participate in the joint defense of such Proceeding (a "Joint Defense Proceeding") for which the expenses of such joint defense will be shares equally by such parties and the employment of counsel shall be reasonably satisfactory to both partiesrequested in connection therewith. If the Indemnifying Party elects to Indemnitor does not assume and control the defense of a Proceedingthereof, it will provide notice thereof within thirty (30) days after the Indemnitor shall similarly cooperate with the Indemnified Person has given notice of the matter and if Party in such Proceeding is not a Joint Defense Proceeding, the defense or prosecution. The Indemnified Person Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereofor prosecution of any lawsuit with respect to which the Indemnitor has assumed the defense and to employ its own counsel therein, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person Party unless (ai) the employment thereof has been specifically authorized by the Indemnifying Party in writing or (b) the Indemnifying Party has failed to assume the defense and employ Indemnitor shall not have promptly employed counsel reasonably satisfactory to such Indemnified Party to take charge of the defense of such action or (ii) such Indemnified Person. Neither the Indemnified Person nor the Indemnifying Party may consent to the entry shall have reasonably concluded that there exists a significant conflict of any judgment interest with respect to the matter or enter into conduct of such Indemnified Party's defense by the Indemnitor, in either of which events such fees and expenses shall be borne by the Indemnitor and the Indemnitor shall not have the right to direct the defense of any settlement with respect such action on behalf of the Indemnified Party. The Indemnitor shall have the right, in its sole discretion, to settle any claim solely for monetary damages for which indemnification has been sought and is available hereunder, provided that the Indemnitor shall not agree to the matter -------- settlement of any claim which judgment or constitutes the subject of a Claim Notice which settlement does not release in the other reasonable opinion of the Indemnified Party from all liability to would have an adverse continuing effect on the third party with respect thereto business of the Indemnified Party without the prior written consent of the other Indemnified Party. The Indemnified Party shall give written notice to the Indemnitor of any proposed settlement of any suit, which consent settlement the Indemnitor may, if it shall not be unreasonably withheld (it being understood that the extent to which any Party will be obligated to pay for Damages resulting from such matter as compared to the other Party shall be considered in determining whether it is reasonable for such Party to withhold its consent from the entry of any judgment or settlement with respect to such matter); provided that no settlement of a Joint Defense Proceeding may be effected without the consent of both parties. If there shall be a settlement to which the Indemnifying Party consents or a final judgment for the plaintiff in any Proceeding, have assumed the defense of the suit, reject in its reasonable judgment within 10 days of receipt of such notice. Notwithstanding the foregoing the Indemnified Party shall have the right to pay or settle any suit for which indemnification has been sought and is available hereunder, provided that, if the Indemnifying Party elected to assumedefense of such claim shall have been assumed -------- by the Indemnitor, the Indemnifying Indemni fied Party shall indemnify the Indemnified Person with respect automatically be deemed to the settlement or judgmenthave waived any right to indemnification hereunder.