Common use of Defense of Third Party Claims Clause in Contracts

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt In the event of the assertion or commencement by any third party of any claim or proceeding against either a Buyer Indemnified Person or the Indemnifying Party of a notice from Seller Indemnified Person (such person being the “Indemnified Party Party”) with respect to any claim of a third party against which Buyer or the Indemnified Seller (the “Indemnifying Party”) may become obligated to indemnify, for which the Indemnified Party seeks indemnification hereundercompensate or reimburse pursuant to this Section 10, the Indemnifying Party shall have the right right, at its election, to assume the defense of such claim, and claim or proceeding at the Indemnified Party shall cooperate to the extent reasonably requested by sole expense of the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithParty. If the Indemnifying Party shall elect so elects to assume the defense of any such claim, claim or proceeding: (a) the Indemnifying Party shall proceed to defend such claim or proceeding in a diligent manner with counsel reasonably satisfactory to the Indemnified Party; (b) the Indemnified Party shall make available to the Indemnifying Party and/or the counsel provided by the Indemnifying Party any documents and materials in the possession of the Indemnified Party that may be necessary to the defense of such claim or proceeding; (c) the Indemnifying Party shall keep the Indemnified Party informed of all material developments and events relating to such claim or proceeding; (d) the Indemnified Party shall have the right to employ its own counsel participate in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any such claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunderor proceeding; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then (e) the Indemnifying Party shall not settle or compromise such claim or proceeding without the prior written consent of the Indemnified Party unless (i) the Indemnifying Party obtains, at no cost to the Indemnified Party, a release executed and delivered by the claiming third party or parties of all claims against the Indemnified Party and (ii) any such consent settlement or compromise will not impose any civil or criminal liability on the Indemnified Party or require an admission of culpability on the part of the Indemnified Party; and (f) the Indemnified Party may at any time (notwithstanding the prior designation of the Indemnifying Party to assume the defense of such claim or proceeding) assume the defense of such claim or proceeding if the Indemnifying Party is also a party to such claim and the Indemnified Party reasonably determines that joint representation would be unreasonably withheld, conditioned or delayedinappropriate. If the Indemnifying Party does not elect to assume the defense of a third party any such claim and disputes or proceeding (or if, after initially assuming such defense, to the extent permitted pursuant to this Section 10.5, the Indemnified Party elects to assume such defense), the Indemnified Party may proceed with the defense of such claim or proceeding on its own. If the Indemnified Party so proceeds with the defense of any such claim or proceeding on its own: (i) all reasonable expenses directly or indirectly incurred by the Indemnified Party relating to the defense of such claim or proceeding shall be borne and paid exclusively by the Indemnifying Party’s right ; (ii) the Indemnifying Party shall make available to indemnification, the Indemnified Party any documents and materials in the possession or control of the Indemnifying Party that may be necessary to the defense of such claim or proceeding; (iii) the Indemnified Party shall keep the Indemnifying Party informed of all material developments and events relating to such claim or proceeding; and (iv) the Indemnified Party shall have the right to assume control of the defense of settle or compromise such claim through counsel of its choice, or proceeding with the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party; provided, however, that the Indemnifying Party shall not unreasonably withhold such consent not to be unreasonably withheld, conditioned or delayedconsent.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the If an Indemnified Party, ’s claim for which the Indemnified indemnification under Section 7.1 or Section 7.2 is based on a Claim brought by a Third Party seeks indemnification hereunder(a “Third Party Claim”), the Indemnifying Party shall have the right, at its sole cost and expense, to defend such Third Party Claim in the name or on behalf of the Indemnified Party. Notwithstanding the foregoing, an Indemnified Party shall have the right (following notice to assume the Indemnifying Party) to retain its own counsel and control its defense of any such claimThird Party Claim, with the reasonable fees and expenses to be paid by the Indemnifying Party if (a) representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate because of actual or potential differing interests between such Indemnified Party and the Indemnifying Party; (b) the Indemnifying Party shall have failed to employ counsel to defend such Proceeding or otherwise failed to prosecute such defense with reasonable diligence; or (c) the Indemnified Party shall cooperate have been advised by counsel chosen by it that there may be one or more legal defenses or counterclaims available to the extent reasonably requested by such Indemnified Party that are different from or additional to those available to the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithProceeding. If the Indemnifying immediately-preceding sentence is inapplicable (or if the Indemnified Party shall elect waives its right hereunder to assume the defense of defend such claimThird Party Claim), the Indemnified Party shall have the right to employ separate counsel at its own counsel cost and expense in any the Proceeding and, in such caseevent, but shall and shall have the fees and expenses right to, consult with the Indemnifying Party regarding the defense thereof; provided that, except as otherwise provided herein, the Indemnifying Party shall at all times control such defense of such counsel shall be at the expense of the Indemnified PartyProceeding. If the Indemnifying Party has assumed assumes the defense of any claim against the Indemnified Partysuch Third Party Claim, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall may not settle such or compromise the claim without the prior written consent of the Indemnified Party, such Party (which consent shall not to be unreasonably withheld, conditioned or delayed), unless the settlement or compromise includes a full release of all of the Indemnified Parties. If the The Indemnifying Party does not assume shall pay to or for the defense benefit of the Indemnified Parties in cash the amount for which such Indemnified Parties are entitled to be indemnified within thirty (30) days after the settlement or compromise of such Third Party Claim or the final non-appealable judgment of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified court of competent jurisdiction. An Indemnifying Party shall have the right to assume control not be liable for any settlement or compromise of the defense of such claim through counsel of any Third Party Claim without its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedconsent.

Defense of Third Party Claims. Upon receipt Any Indemnitee making a claim for indemnification under this Article 10 shall notify the Indemnitor of the claim in writing promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim against it (if by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against party) (each, a “Third Party Claim”), describing the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderclaim, the Indemnifying amount thereof (if known and quantifiable) and the basis thereof; provided, however, that the failure to so notify an Indemnitor shall not affect the obligations of the Indemnitor hereunder unless the Indemnitor is actually prejudiced by such failure. Any Indemnitor shall be entitled to participate in the defense of such Third Party Claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall have the right be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense; provided, however, that prior to the Indemnitor assuming control of such claim, and the Indemnified Party defense it shall cooperate first verify to the extent reasonably requested by Indemnitee in writing that such Indemnitor shall be fully responsible (with no reservation of any rights) for all Losses and Expenses relating to such claim for indemnification and that it shall provide full indemnification to the Indemnifying Indemnitee with respect to such Third Party Claim giving rise to such claim for indemnification hereunder; and provided, further, that: (a) the Indemnitee shall be entitled to participate in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right claim and to employ counsel of its own counsel in any choice for such casepurpose, but provided, that the fees and expenses of such separate counsel shall be at borne by the expense Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the Indemnified Party. If date the Indemnifying Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnitor); (b) the Indemnitor shall not be entitled to assume control of such defense and shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation of or concerning the Indemnitee but not the Indemnitor; (ii) the Indemnitee reasonably believes that an adverse determination with respect to the Third Party has assumed Claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects; (iii) the claim seeks an injunction or equitable relief against the Indemnitee; (iv) a conflict of interest exists between the Indemnitor and the Indemnitee; or (v) the Indemnitor failed or is failing to vigorously prosecute or defend such claim; and (c) if the Indemnitor is controlling the defense of any claim against the Indemnified Partysuch claim, the Indemnifying Party Indemnitor shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without obtain the prior written consent of the Indemnified PartyIndemnitee before entering into any settlement or ceasing to defend such claim if, pursuant to or as a result of such consent not to settlement or cessation, injunctive or other equitable relief will be unreasonably withheldimposed against the Indemnitee or any Intellectual Property Rights of the Indemnitee shall be rendered invalid or unenforceable, conditioned or delayed. If the Indemnifying Party if such settlement does not assume expressly and unconditionally release the defense of a third party claim Indemnitee from all liabilities and disputes obligations with respect to such claim, without prejudice, or if any payment is required by the Indemnified Party’s right Indemnitee which is not entitled to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedIndemnitor.

Defense of Third Party Claims. Upon receipt If a Party determines to make a claim for indemnification hereunder (each as applicable an “Indemnitee”), such Party as applicable shall notify the indemnifying party (an “Indemnitor”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or other claim against the Indemnitee (if by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against party), describing the Indemnified Partyclaim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail (such written notice, an “Indemnification Notice”); provided that the failure to so notify an Indemnitor shall not relieve the Indemnitor of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the damages for which the Indemnified Party seeks Indemnitor is obligated to be greater than such damages would have been had the Indemnitee given the Indemnitor prompt notice hereunder. Any Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification hereunderat such Indemnitor’s expense, the Indemnifying Party and at its option shall have the right be entitled to assume the defense of such claim, and the Indemnified Party shall cooperate thereof by appointing a reputable counsel reasonably acceptable to the extent reasonably requested by Indemnitee to be the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party lead counsel in connection therewith. If with such defense; provided, that the Indemnifying Party Indemnitee shall elect be entitled to assume participate in the defense of such claim, the Indemnified Party shall have the right claim and to employ counsel of its own counsel in any choice for such casepurpose; provided, but however, that the fees and expenses of such separate counsel shall be at borne by the expense of the Indemnified PartyIndemnitee and shall not be recoverable from such Indemnitor under this Article IX. If the Indemnifying Party has assumed Indemnitor shall control the defense of any claim against the Indemnified Partysuch claim, the Indemnifying Party Indemnitor shall have the right be entitled to settle any claim for which indemnification has been sought and is available hereundersuch claims; provided thatprovided, to that the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party Indemnitor shall not settle such claim without obtain the prior written consent of the Indemnified Party, such Indemnitee (which consent shall not to be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to such claim. If the Indemnifying Party does Indemnitor assumes such defense, the Indemnitor shall not be liable for any amount required to be paid by the Indemnitee that exceeds, where the Indemnitee has unreasonably withheld or delayed consent in connection with the proposed compromise or settlement of a third party claim, the amount for which that third party claim could have been settled pursuant to that proposed compromise or settlement. In all cases, the Indemnitee shall provide its reasonable cooperation with the Indemnitor in defense of claims or litigation, including by making employees, information and documentation reasonably available. If the Indemnitor shall not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationany such action, lawsuit, proceeding, investigation or other claim, the Indemnified Party shall have the right to assume control of the defense of Indemnitee may defend against such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event matter as it deems appropriate; provided that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance Indemnitee may not settle any such matter without the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such Indemnitor (which consent shall not to be unreasonably withheld, conditioned or delayed) if the Indemnitee is seeking or will seek indemnification hereunder with respect to such matter.

Defense of Third Party Claims. Upon receipt The Indemnifying Party shall be entitled to participate in the defense of the Third Party Claim and, if it so chooses, to assume the defense thereof, at its own expense, with counsel selected by the Indemnifying Party (so long as such counsel is not reasonably objected to by the Indemnified Party) if: (i) the Indemnifying Party acknowledges its obligation to indemnify the Indemnified Party for any indemnifiable Losses resulting from such Third Party Claim; (ii) such Third Party Claim involves (and continues to involve) solely monetary damages which are not reasonably likely to exceed the applicable amount in Section 7.4(a) or (b), as applicable; (iii) such Third Party Claim does not relate to or arise in connection with any criminal action; (iv) the Indemnifying Party makes reasonably adequate provision to satisfy the Indemnified Party of a the Indemnifying Party’s ability to defend, satisfy and discharge such Third-Party Claim; (v) no defense exists for the Indemnified Party which is not available to the Indemnifying Party; and (vi) if the named parties to such Third Party Claim (including impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would not be inappropriate due to actual or potential differing interests between them (as determined by the Indemnified Party in its reasonable discretion) (collectively, the “Defense Conditions”). If the Indemnifying Party elects to assume the defense of any Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if (i) the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within five (5) Business Days after receiving written notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which that the Indemnified Party seeks indemnification hereunder, believes the Indemnifying Party shall have has failed to take such steps, (ii) the right Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all indemnifiable Losses relating to the matter, or (iii) if any of the Defense Conditions cease to be satisfied for any reason, the Indemnified Party may assume the defense of such claimits own defense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense will be liable for all reasonable costs or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party expenses paid or incurred in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, and the Indemnified Party shall have the right to employ its own counsel in compromise or settle such Third Party Claim with the consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed) and, if settled with such consent, or if there is a final judgment against the Indemnified Party, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. In the event the Indemnifying Party has assumed control of the defense of the Third Party Claim, the Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of any such case, but action or suit through counsel chosen by the Indemnified Party; provided that such counsel is not reasonably objected to by the Indemnifying Party and the fees and expenses of such counsel shall be at the expense of borne by the Indemnified Party. If The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party in the defense of a Third Party Claim for any period during which the Indemnifying Party has not assumed the defense of any claim against thereof (other than during the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, period prior to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, time the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from notified the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedThird Party Claim).

Defense of Third Party Claims. Upon receipt (a) In the event of any claim by the Indemnifying a Person not a Party of a notice from the Indemnified Party to this Agreement with respect to any claim of a third party against the Indemnified Party, for matter to which the Indemnified Party seeks indemnification hereunderSections 8.1 or 8.2 hereof relates, the Indemnifying Party indemnified party, after not less than thirty (30) days’ written notice to the indemnifying party containing the terms of the proposed settlement, may make settlement of such claim, and such settlement shall be binding on the Parties hereto for the purposes of this Section 8.3; provided, however, that, if within such thirty (30) day period, the indemnifying party shall have requested the indemnified party to contest any such claim at the expense of the indemnifying party, the indemnified party shall promptly comply, and the indemnifying party shall have the right to assume direct the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense claim or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithany litigation based thereon at its own expense through counsel of its own choosing. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party The indemnified party also shall have the right to employ its own counsel participate in the settlement of any such claim or in any such caselitigation so long as its participation is at its own expense and with the understanding that the indemnifying party may settle in its own discretion at its sole expense so long as any such settlement provides for a complete release and discharge of the indemnified party and does not impose any liabilities or obligations on the indemnified party. Any payment or settlement made by the indemnifying party in such contest, but together with the fees and expenses of such counsel total expense thereof, shall be at binding on the expense indemnified party and the indemnifying party for the purposes of this Section 8.3. (b) In the Indemnified Party. If the Indemnifying Party has assumed the defense of event that any litigation, proceeding, controversy, claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and or other matter is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of initiated by a third party claim against Purchaser or a Seller, and disputes Purchaser or Sellers, as the Indemnified Party’s right case may be, are obligated or potentially obligated to indemnificationindemnify, defend and hold the other harmless under this Article VIII, the Indemnified Party shall have indemnified or potentially indemnified party will reasonably cooperate with the right indemnifying or potentially indemnifying party with respect to assume control of the investigation and defense of such litigation, proceeding, controversy or claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedmatter.

Defense of Third Party Claims. Upon receipt If any claim set forth in the Notice of Claim given by an Indemnitee pursuant to Section 8.5 hereof is a claim asserted by a third party, the Indemnitor shall have 30 days after the date that the Notice of Claim is given by the Indemnifying Party Indemnitee to notify the Indemnitee in writing of a notice from the Indemnified Party with respect Indemnitor's election to any claim of a defend such third party against claim on behalf of the Indemnified Party, for which Indemnitee. If the Indemnified Party seeks indemnification hereunderIndemnitor elects to defend such third party claim, the Indemnifying Party Indemnitee shall make available to the Indemnitor and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnitee's possession or under the Indemnitee's control as is reasonably required by the Indemnitor and shall otherwise cooperate with and assist the Indemnitor in the defense of such third party claim, and so long as the Indemnitor is defending such third party claim in good faith, the Indemnitee shall not pay, settle or compromise such third party claim. If the Indemnitor elects to defend such third party claim, the Indemnitee shall have the right to participate in the defense of such third party claim, at the Indemnitee's own expense. In the event, however, that the Indemnitee reasonably determines that representation by counsel to the Indemnitor of both the Indemnitor and the Indemnitee may present such counsel with a conflict of interest, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and the Indemnitor will, subject to the provisions of this Article 8, pay the reasonable fees and disbursements of such counsel. If the Indemnitor does not elect to defend such third party claim or does not defend such third party claim in good faith, the Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnitor's expense, to defend such third party claim; provided, however, that such Indemnitee's defense of or its participation in the defense of any such third party claim shall not in any way diminish or lessen the indemnification obligations of the Indemnitor under this Article 8. If the Indemnitor shall assume the defense of such a third party claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party it shall not settle such claim without the prior written consent of the Indemnified Party, Indemnitee (i) unless such consent not settlement includes as an unconditional term thereof the giving by the claimant of a release of the Indemnitee from all Liability with respect to such claim or (ii) if such settlement involves the imposition of equitable remedies or the imposition of any obligations on such Indemnitee other than financial obligations for which such Indemnitee will be unreasonably withheld, conditioned or delayedindemnified hereunder. If the Indemnifying Party does not assume the defense of Indemnitee is defending a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of it will not settle such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying PartyIndemnitor, such consent which will not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. (a) Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested notice by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right option of defending against the pending Third Party Claim resulting therefrom through engagement of legal counsel of its choice; provided, however, that the Indemnifying Party's choice of legal counsel must be acceptable to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party in its reasonable discretion. In the event the Indemnifying Party elects to takedefend, or prohibits the Indemnifying Party shall keep the Indemnified Party from takingfully informed on a timely basis of the status of the pending Third Party Claim, any action or purports to obligate and the Indemnified PartyParty shall reasonably cooperate in such defense. If the Indemnifying Party elects to defend, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, if the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim or the Indemnifying Party fails to diligently pursue such defense, the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith shall be considered Losses for purposes of this Agreement. (b) In the event that the Indemnifying Party elects to defend and is unsuccessful in such defense, it shall promptly pay any and all Losses associated with the pending Third Party Claim being so defended. In the event the Indemnifying Party elects not to defend and the Indemnified Party defends, but is unsuccessful, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayedpromptly pay any and all Losses. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in In the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may Indemnifying Party elects not to defend and the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from defends successfully, then the Indemnifying Party shall promptly pay to the Indemnified Party any and all Losses. (c) The Indemnified Party may not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without first obtaining the prior written consent of the Indemnifying Party, unless such settlement, compromise or consent not includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. (d) The Indemnifying Party shall reimburse the Indemnified Party on demand for any payment made by the Indemnified Party at any time after the Initial Closing, based on the final judgment of any court of competent jurisdiction or pursuant to be unreasonably withhelda bona fide compromise or settlement of claims, conditioned demands or delayedactions in respect to any Losses to which the foregoing indemnification relates.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third The indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right (but not the obligation) to assume conduct and control, through counsel of its own choosing, any third party Legal Action, but the indemnified party may, at its election, participate in the defense thereof at its sole cost and expense. After notice to the indemnified party from the indemnifying party of such third party Legal Action, the indemnifying party shall not be liable to the indemnified party under this Article 9 for any fees of other counsel or any other expenses with respect to the defense or investigation of such third party Legal Action, in each case subsequently incurred by the indemnified party in connection with the defense of such claim, third party Legal Action unless and until the Indemnified Party shall cooperate indemnifying party notifies the indemnified party in writing that it is electing to not assume the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume control of the defense of such claim, the Indemnified Party third party Legal Action. The indemnifying party shall have the right to employ its own counsel in not compromise or settle any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim Legal Action (i) without the prior written consent of the Indemnified Partyindemnified party, such which consent shall not to unreasonably be unreasonably withheld, conditioned delayed or delayed. If conditioned, or (ii) unless (A) the Indemnifying Party sole relief provided is monetary damages and (B) such compromise or settlement does not assume include any term or condition which would restrict in any manner the operations of the indemnified party. The indemnified and indemnifying parties shall cooperate in the defense or prosecution of a any Legal Action covered by this Section 9.5. Such cooperation shall include access during normal business hours afforded to the indemnifying party to, and reasonable retention by the indemnified party of, records and information which are reasonably relevant to such third party claim Legal Action, and disputes the Indemnified Party’s right making employees available on a mutually convenient basis to indemnification, the Indemnified Party shall have the right to assume control provide additional information and explanation of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event any material provided hereunder; provided that the Indemnified Party’s right parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may all confidential information and the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedattorney-client and work-product privileges.

Defense of Third Party Claims. Upon receipt If any Valid Claim arises out of or involves a claim or demand made by any person against the Surviving Corporation or the indemnified party (a "Third Party Claim"), then the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the Indemnifying indemnifying party; provided, that such counsel is not reasonably objected to by the indemnified party; and provided further, that if either (i) any indemnified party reasonably concludes that there may be one or more legal defenses available to it that are different from or in addition to (and are inconsistent with) those available to the indemnifying party, or that a conflict or potential conflict exists between any indemnified party, on the one hand, and any indemnifying party, on the other hand (a "Conflicting Matter"), or (ii) the Third Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified PartyClaim seeks an order, injunction or other equitable relief or relief for other than money damages which the Indemnified Party seeks indemnification hereunderindemnified party reasonably concludes cannot be separated from any related claim for money damages (a "Specific Performance Matter"), the Indemnifying Party shall indemnifying party will not have the right to assume direct the defense of such claimaction on behalf of such indemnified party with respect to such Conflicting Matter or Specific Performance Matter, and the Indemnified Party indemnified party shall cooperate to direct the extent reasonably requested by defense of the Indemnifying Party in defense portion of such claim that constitutes a Conflicting Matter or prosecution thereof and shall furnish such recordsSpecific Performance Matter through counsel (including a local counsel, information and testimony and attend all such conferencesif necessary) of its choosing, discovery proceedings, hearings, trials and appeals as may be reasonably requested by at the Indemnifying Party in connection therewithexpense of the indemnified party. If Should the Indemnifying Party shall indemnifying party so elect to assume the defense of such claima Third Party Claim, the Indemnified Party indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel in any employed by the indemnifying party, it being understood that the indemnifying party shall control such casedefense. Notwithstanding the foregoing, but the indemnifying party shall be liable for the fees and expenses of such counsel employed by the indemnified party for any period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall be at the expense have given notice of the Indemnified PartyThird Party Claim as provided above). If the Indemnifying indemnifying party so elects to assume the defense of any Third Party has Claim, the indemnified party shall cooperate with the indemnifying party in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of any claim against the Indemnified Partya Third Party Claim, the Indemnifying Party indemnified party shall have the right to settle not admit any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to takeliability with respect to, or prohibits the Indemnified settle, compromise or discharge, such Third Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim Claim without the indemnifying party's prior written consent of the Indemnified Party, such (which consent shall not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume indemnifying party shall have assumed the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationThird Party Claim, the Indemnified Party indemnified party shall have the right agree to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through any settlement, compromise or other legal proceeding. In no circumstance 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, which releases the indemnifying party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon (a) Promptly after receipt by an indemnified party under Section 5.2 or Section 5.3 of notice of the Indemnifying Party assertion or commencement by any third person or entity of any claim, investigation, proceeding or action (collectively, a notice from the Indemnified Party "Claim") with respect to which any indemnifying party may become obligated to indemnify, hold harmless, compensate or reimburse an indemnified party pursuant to this Section 5, such indemnified party will, if a claim is to be made against an indemnifying party under such Section or if the indemnified party intends to take such claim into account in calculating the limitations described in Section 5.2(b) or Section 5.3(b), as applicable, give notice to the indemnifying party of the commencement of such Claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that the indemnifying party may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice. (b) The indemnified party shall afford the indemnifying party the opportunity to assume the defense of any claim as to which notice is given under Section 5.6(a) at the sole expense of a third the indemnifying party. If the indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right so undertakes to assume the defense of such claim, and Claim: (i) the Indemnified Party indemnifying party shall cooperate proceed to defend such Claim in a diligent manner with counsel reasonably satisfactory to the extent reasonably requested by indemnified party; (ii) the Indemnifying Party in defense or prosecution thereof indemnifying party shall keep the indemnified party informed of all material developments and shall furnish events relating to such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by Claim; (iii) the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party indemnified party shall have the right to employ its own counsel participate in any such case, but the fees and expenses defense of such Claim, provided, however, the counsel retained by the indemnified party shall be at the sole cost and expense of the Indemnified Party. If indemnified party, and further provided, that counsel retained by the Indemnifying Party has assumed indemnifying party shall be lead counsel in the defense of any claim against such Claim; and (iv) the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party indemnifying party shall not settle settle, adjust or compromise such claim Claim without the prior written consent of the Indemnified Party, such consent indemnified party which shall not to be unreasonably withheld, conditioned withheld or delayed. . (c) If the Indemnifying Party does not assume indemnifying party fails to promptly undertake the defense of a third such Claim or having undertaken such defense thereafter fails to do so diligently and in good faith, then the indemnified party claim may proceed with the defense of such Claim and: (i) all expenses incurred and disputes relating to the Indemnified Party’s right defense of such Claim shall be borne and paid exclusively by the indemnifying party; (ii) the indemnifying party shall make available to indemnification, the Indemnified Party indemnified party any documents and materials in the possession or control of the indemnifying party that may be necessary to the defense of such Claim; (iii) the indemnified party shall keep the indemnifying party informed of all material developments and events relating to such Claim; and (iv) the indemnified party shall have the right to assume control of settle, adjust or compromise such Claim with the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent indemnifying party which shall not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third The indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the ----------------------------- right to assume the defense conduct and control, through counsel of such claimtheir own choosing, and the Indemnified Party shall cooperate reasonably acceptable to the extent reasonably requested by the Indemnifying Party in defense indemnified party, any third party Legal Action or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseother Claim, but the fees indemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that if the indemnifying party shall fail to defend any such Legal Action or other Claim, then the indemnified party may defend, through counsel of its own choosing, such Legal Action or other Claim, and (so long as it gives the indemnifying party at least fifteen (15) days' notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the defense thereof) settle such Legal Action or other Claim and to recover the amount of such settlement or of any judgment and the reasonable costs and expenses of such counsel defense. The indemnifying party shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to not compromise or settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, Legal Action or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim other Claim without the prior written consent of the Indemnified Partyindemnified party; provided, however, that if the indemnified party fails or refuses to consent in writing to any compromise of settlement proposed by the indemnifying party and agreed to in writing by the claimant in such consent Legal Action or other Claim (the "Settlement Proposal") within ten (10) business days after receipt of written notice of all of the material terms and conditions of the Settlement Proposal, and such terms and conditions (a) include a full release of the indemnified party from the Legal Action or other Claim which is the subject of the Settlement Proposal and (b) if the indemnified party is ATS, do not to be unreasonably withheldinclude any term or condition which would restrict in any material manner the continued ownership and operations of the Meridian Assets and the conduct of the Meridian Business in substantially the manner theretofore owned, conditioned or delayed. If operated and conducted by Meridian, then, unless the Indemnifying Party does not assume indemnifying party forthwith withdraws the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationSettlement Proposal, the Indemnified Party indemnified party (i) shall have the right but not the obligation to assume control undertake the conduct of the defense of such claim through counsel Legal Action or other Claim, and (ii) whether or not it shall so undertake the defense of its choicesuch Legal Action or other Claim, shall bear, and shall indemnify and hold the reasonable indemnifying party harmless from, all Loss and Expense arising from such Legal Action or other Claim (to the extent not theretofore (x) accrued with respect to the costs and expenses of which shall be at the Indemnifying Party’s expense defense of such Legal Action or other Claim or (y) paid with respect to such Legal Action or other Claim) in excess of the amount contained in the event Settlement Proposal, it being understood, in such event, that the Indemnified Party’s right indemnifying party shall bear all Loss and Expense, including subsequently incurred Loss and Expense (including without limitation those attributable to legal fees and expenses) up to the amount contained in the Settlement Proposal, even if the ultimate disposition of indemnification is ultimately established through settlement, compromise such Legal Action or other legal proceeding. In no circumstance may Claim results in payments to the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from claimant of less than those contained in the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedSettlement Proposal.

Defense of Third Party Claims. Upon (a) Promptly after receipt by an indemnified party under Section 7.2 or Section 7.3 of notice of the Indemnifying Party assertion or commencement by any third person or entity of any claim, investigation, proceeding or action (collectively, a notice from the Indemnified Party "Claim") with respect to which any indemnifying party may become obligated to indemnify, hold harmless, compensate or reimburse an indemnified party pursuant to this Section 7, such indemnified party will, if a claim is to be made against an indemnifying party under such Section or if the indemnified party intends to take such claim into account in calculating the limitations described in Section 7.2(e) or Section 7.3(b), as applicable, give notice to the indemnifying party of the commencement of such Claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that the indemnifying party may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice. (b) The indemnified party shall afford the indemnifying party the opportunity to assume the defense of any claim as to which notice is given under Section 7.6(a) at the sole expense of a third the indemnifying party. If the indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right so undertakes to assume the defense of such claim, and Claim: (i) the Indemnified Party indemnifying party shall cooperate proceed to defend such Claim in a diligent manner with counsel reasonably satisfactory to the extent reasonably requested by indemnified party; (ii) the Indemnifying Party in defense or prosecution thereof indemnifying party shall keep the indemnified party informed of all material developments and shall furnish events relating to such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by Claim; (iii) the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party indemnified party shall have the right to employ its own counsel participate in any such case, but the fees and expenses defense of such Claim; provided, however, the counsel retained by the indemnified party shall be at the sole cost and expense of the Indemnified Party. If indemnified party, and further provided, that counsel retained by the Indemnifying Party has assumed indemnifying party shall be lead counsel in the defense of any claim against such Claim; and (iv) the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party indemnifying party shall not settle settle, adjust or compromise such claim Claim without the prior written consent of the Indemnified Party, such consent indemnified party which shall not to be unreasonably withheld, conditioned withheld or delayed. . (c) If the Indemnifying Party does not assume indemnifying party fails to promptly undertake the defense of a third such Claim or having undertaken such defense thereafter fails to do so diligently and in good faith, then the indemnified party claim may proceed with the defense of such Claim and: (i) all expenses incurred and disputes relating to the Indemnified Party’s right defense of such Claim shall be borne and paid exclusively by the indemnifying party; (ii) the indemnifying party shall make available to indemnification, the Indemnified Party indemnified party any documents and materials in the possession or control of the indemnifying party that may be necessary to the defense of such Claim; (iii) the indemnified party shall keep the indemnifying party informed of all material developments and events relating to such Claim; and (iv) the indemnified party shall have the right to assume control of settle, adjust or compromise such Claim with the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent indemnifying party which shall not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt (a) The Indemnifying Party shall be entitled, at its option, and expense and with counsel of its selection, to assume and control the defense of any third-party claim, action, suit or proceeding that is subject to any indemnity provided in this Agreement by such Indemnifying Party, subject to the prior approval of the Indemnified Party, which shall not unreasonably be withheld; provided that the Indemnifying Party gives prompt notice of its intention to do so to the Indemnified Party and reimburses the Indemnified Party for the reasonable costs and expenses incurred by the Indemnified Party prior to the assumption by the Indemnifying Party of a notice from such defense. (b) Notwithstanding the provisions of this Section 11.5, unless and until the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party with respect to any claim and assumes control of the defense of a claim, suit, action or proceeding in accordance with Section 11.5(a), the Indemnified Party shall have the right, but not the obligation, to contest, defend and litigate, with counsel of its own selection, any claim, action, suit or proceeding by any third party alleged or asserted against the Indemnified Party in respect of, resulting from, related to or arising out of any matter for which it is entitled to be indemnified hereunder, and the reasonable costs and expenses thereof shall be subject to the indemnification obligations of the Indemnifying Party hereunder. (c) Indemnifying Party shall not be entitled to settle or compromise any such claim, suit, action or proceeding without the prior written consent of the Indemnified Party; provided that after agreeing in writing to indemnify the Indemnified Party, for which the Indemnifying Party may settle or compromise any claim without the approval of the Indemnified Party seeks indemnification hereunder, so long as such claim is solely for monetary damages that are paid in full by the Indemnifying Party shall have and so long as the right Indemnified Party is fully released from liability by the claimant. So long as the Indemnifying Party is fulfilling its obligations pursuant to assume the defense of such claimthis Article XI, and the Indemnified Party shall cooperate not be entitled to settle any such claim, suit, action or proceeding without the extent reasonably requested prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. (d) Following the acknowledgment of the indemnification and the assumption of the defense by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimParty, the Indemnified Party shall have the right to employ its own counsel and such counsel may participate in any such caseaction, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If , when and as occurred, unless (i) the employment of counsel by the Indemnified Party has been authorized in writing by the Indemnifying Party and the Indemnifying Party has assumed agreed to pay such fees and expenses, (ii) the Indemnified Party shall have reasonably concluded, upon advice of counsel, that there would be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to takeaction, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then (iii) the Indemnifying Party shall not settle such claim without the prior written consent of in fact have employed independent counsel reasonably satisfactory to the Indemnified Party, such consent not Party to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim such action and disputes shall have been so notified by the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt In the event that an Indemnified Party becomes aware of a claim by a third party (a “Third Party Claim”) that such Indemnified Party in good faith believes may result in a Claim by or on behalf of such Indemnified Party, such Indemnified Party shall have the right in its sole discretion to conduct the defense of and to settle or resolve such Third Party Claim. The Indemnified Party shall notify the Indemnifying Party of a notice from any such Third Party Claim, and the Indemnified Indemnifying Party with respect shall be entitled, at its expense, to any claim of a third party against the Indemnified Partyparticipate in, for which the Indemnified Party seeks indemnification hereunderbut not to determine or conduct, the defense of such Third Party Claim. The Indemnifying Party shall have the right to assume receive copies of all pleadings, notices and communications with respect to the defense Third Party Claim to the extent that receipt of such claim, and documents does not affect any privilege relating to the Indemnified Party shall cooperate and subject to the extent reasonably requested execution by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, a standard non-disclosure agreement to the extent that such materials contain confidential or proprietary information. In the event of settlement requires or other resolution by the Indemnified Party to takeof any Third Party Claim, the amount paid in such settlement or prohibits resolution (the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then “Settlement Amount”) shall not be determinative and binding upon the Indemnifying Party shall as to the amount of Damages recoverable pursuant to this Article 10 with respect thereto unless the Indemnifying Party has consented (or been deemed to have consented), which consent may not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If , to any such settlement or resolution (in which case the Settlement Amount for such settlement or resolution shall, subject to the limitations set forth in this Article 10, be Damages for which the Indemnified Party is entitled to be indemnified, compensated and reimbursed hereunder), it being understood and agreed that any costs and expenses incurred or paid by any Indemnified Party in connection with the defense (including reasonable attorneys’ fees, other professionals’ and experts’ fees, costs of investigation and court or arbitration costs) with respect to such settlement or resolution are Damages recoverable pursuant to this Article 10 regardless of whether the Indemnifying Party does not assume consents (or is deemed to have consented) to the defense of Settlement Amount. The Indemnifying Party’s consent to any such settlement or resolution shall be deemed to have been given unless the Indemnifying Party shall have objected in a third party claim and disputes writing delivered to the Indemnified Party within ten (10) Business Days after a written request for such consent is delivered to the Indemnifying Party by the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by A party (the "Indemnifying Party") indemnifying another party (the "Indemnified Party") pursuant to this Agreement shall have the right, in its discretion and at its election, to assume and control the defense of any Claim provided that the Indemnifying Party notifies the Indemnified Party of such election within a notice from reasonable time period under the circumstances. The Indemnified Party if notified of the Indemnifying Party's election to do so within such reasonable time frame, will permit the Indemnifying Party to assume and control the defense of such Claim in the name of the Indemnified Party in any appropriate administrative or judicial proceedings and will take whatever actions may be reasonably requested of the Indemnified Party to permit the Indemnifying Party to conduct such defense and to settle or to obtain an adjudication of such Claim on the merits, including the signing of pleadings and other document, if necessary; provided, however, that the Indemnifying Party shall defend the Claim with counsel reasonably satisfactory to the Indemnified Party and provide the Indemnified Party with respect evidence reasonably satisfactory to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderthat the Indemnifying Party can satisfy the Claim if it is upheld. In addition to the liability for ultimate settlement or judgment, if any, arising out of any such Claim under this Agreement, the Indemnifying Party shall have be solely responsible for all the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party expenses incurred in connection therewithwith such defense, regardless of the outcome. If However, the Indemnifying Party shall not be responsible for any expenses, including attorneys' fees and costs, incurred by the Indemnified Party to monitor the defense of the Claim by the Indemnifying Party. In the event that the Indemnifying Party does not elect to assume the defense of any such claimClaim under the terms of this Agreement, the Indemnified Party shall have the right be entitled to employ its own counsel conduct such defense, and to settle such Claim (but such settlement, in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If those cases where the Indemnifying Party has assumed the defense of acknowledged and confirmed its indemnification obligation, including its obligation to indemnify for any claim against the Indemnified Partysettlement entered into with its consent, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at with the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party), and the Indemnifying Party's indemnification obligation under this Agreement shall apply to such consent not to be unreasonably withheld, conditioned defense or delayedsettlement.

Defense of Third Party Claims. Upon receipt If a claim for indemnification pursuant to Section 7.2 or 7.3 shall arise from any action made or brought by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified that would reasonably be expected to result in indemnifiable Losses (a “Third Party seeks indemnification hereunderClaim”), the Indemnifying Party shall have the right to may assume the defense of such claim, and the Indemnified Third Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithClaim. If the Indemnifying Party shall elect to assume assumes the defense of such claimthe Third Party Claim, the Indemnified Party defense shall have be conducted by counsel chosen by the Indemnifying Party, who shall be reasonably acceptable to Indemnitee, provided that the Indemnitee shall retain the right to employ its own counsel and participate in the defense of the Third Party Claim at its own expense (which shall not be recoverable from the Indemnifying Party under this ARTICLE VII unless (i) the Indemnitee is advised by counsel reasonably satisfactory to the Indemnifying Party that use of counsel of the Indemnifying Party’s choice would be expected to give rise to a conflict of interest, (ii) the Indemnifying Party shall not have employed counsel to represent the Indemnitee within a reasonable time after notice of the assertion of any such caseclaim or institution of any such action or proceeding, but or (iii) the Indemnifying Party shall authorize the Indemnitee in writing to employ separate counsel at the expense of the Indemnifying Party, in each of which cases the reasonable expenses of counsel to the Indemnitee shall be reimbursed by the Indemnifying Party). In no event shall the Indemnifying Party be obligated to pay the fees and expenses of such more than one counsel (other than local counsel) for all Indemnitees with respect to any claim indemnified under this ARTICLE VII; provided that an Indemnitee shall be entitled to employ separate counsel at the expense of the Indemnified Party. If Indemnifying Party if the Indemnitee is advised by counsel reasonably satisfactory to the Indemnifying Party has assumed that use of such other counsel would give rise to a conflict of interest, in which case the defense reasonable expenses of any claim against counsel to such Indemnitee shall be reimbursed by the Indemnified Indemnifying Party. Notwithstanding the foregoing provisions of this Section 7.4(b), the (i) no Indemnifying Party shall have the right be entitled to settle any claim Third Party Claim for which indemnification has been is sought and is available hereunder; provided thatunder Section 7.2 or 7.3 without the Indemnitee’s prior written consent, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party which shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed, unless it has assumed the defense of such Third Party Claim and as part of the settlement the Indemnitee is released from all liability with respect to the Third Party Claim and the settlement does not impose any equitable remedy on the Indemnitee or require the Indemnitee to admit any fault, culpability or failure to act by or on behalf of the Indemnitee, and (ii) no Indemnitee shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 7.2 or 7.3 without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, unless the Third Party claim is for money damages only and such settlement does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of the Indemnifying Party and as part of such settlement the Indemnifying Party is released from all liability (for indemnification pursuant to this ARTICLE VII and otherwise) with respect to such Third Party Claim. If the Indemnifying Party does not notify the Indemnitee within twenty (20) Business Days after receipt of the Indemnitee’s notice of a Third Party Claim of indemnity hereunder that it elects to assume the control of the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationany Third Party Claim, the Indemnified Party Indemnitee shall have the right to assume control of contest the defense Third Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement and the costs of such claim through counsel of its choice, actions by the reasonable costs of which Indemnitee shall be at paid by the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by If the Indemnifying Party assumes the defense of a notice from the Indemnified Third Party with respect Claim pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection ‎10.4(a), the Indemnifying Party will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall, and shall cause its Affiliates to, cooperate with the Indemnifying Party and its counsel, including making available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnitee’s possession or under the Indemnitee’s control relating thereto as is reasonably required by the Indemnifying Party. The Indemnitee will have the right to assume the defense of participate in such claimdefense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseincluding appointing separate counsel, but the fees and expenses costs of such counsel participation shall be at borne solely by the expense of the Indemnified PartyIndemnitee. If the Indemnifying Party has assumed the defense of any claim against the Indemnified PartySubject to Section ‎10.4(a), the Indemnifying Party shall have will, in consultation with the right Indemnitee, make all decisions and determine all actions to settle any claim for which indemnification has been sought and is available hereunder; provided that, be taken with respect to the extent defense and settlement of the Third Party Claim; provided, however, that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle pay, compromise, settle, or otherwise dispose of such claim Third Party Claim without the prior written consent of the Indemnified PartyIndemnitee, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party , provided that it will not be deemed to be unreasonable for an Indemnitee to withhold its consent if (A) such payment, compromise, settlement or disposition does not assume involve solely the defense payment of a third party claim and disputes money, (B) such payment, compromise, settlement or disposition does not involve solely the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control payment of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from money by the Indemnifying Party without first obtaining recourse to the prior written Indemnitee, (C) such payment, compromise, settlement or disposition involves a finding or admission of violation of any Law, Order or Permit or rights of any Person by the Indemnitee or its Affiliates, or (D) such payment, compromise, settlement or disposition does not contain an unconditional release of the Indemnitee from the subject matter of such payment, compromise, settlement or disposition. In no event will the Indemnifying Party have authority to agree, without the consent of the Indemnitee, to any relief binding on the Indemnitee other than the payment of money damages by the Indemnifying Party, such consent not Party without recourse to be unreasonably withheld, conditioned or delayedthe Indemnitee.

Defense of Third Party Claims. Upon receipt (a) If the Indemnified Party's claim for Indemnification is based, under this Agreement, on an Action, judicial or otherwise, brought by a third party, and the Indemnifying Party does not object under Section 6.4(b), the Indemnifying Party may, participate in the defense of such Action and may assume the defense of such Action with counsel satisfactory to the Indemnified Party if (i) the Indemnified Party agrees to assumption thereof by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, or (ii) the Indemnifying Party shall have confirmed in writing (without reservation or qualification) its obligation to provide indemnification for the right liability asserted in such action. If the Indemnified Party shall reasonably conclude that its interests in such Action are materially different from those of the Indemnifying Party or that it may have defenses that are different from or in addition to assume those available to the Indemnifying Party, the Indemnified Party may use separate counsel to protect such interests and assert such defenses and otherwise participate in the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithAction. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right with counsel satisfactory to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle not be liable for any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate legal expenses (other than investigation expenses) subsequently incurred by the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, unless the Indemnified Party shall have employed separate counsel in accordance with the right preceding sentence. (b) The Indemnifying Party shall pay to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise in immediately available funds the amounts for which the Indemnified Party is entitled to be indemnified within 30 days after such third party claim is Finally Determined (or settle a claim with within such longer period as agreed to by the parties). (c) In the event an Action is brought by a third party for in which it seeks the liability as between Centex and Cavco is alleged to be joint or in which the entitlement to indemnification from hereunder is not determinable or as to which there has been a reservation of rights, the Indemnifying Party parties shall cooperate in a joint defense. Such joint defense shall be under the general management and supervision of the party which is expected to bear the greater share of the liability; provided, however, that neither party shall settle or compromise any such joint defense matter without first obtaining the prior written consent of the Indemnifying Partyother. The costs of such joint defense shall be borne as the parties may agree, or in the absence of such agreement, such consent not costs shall be borne by the party incurring such costs, subject to be unreasonably withheld, conditioned or delayedultimate resolution pursuant to Article IX hereof.

Defense of Third Party Claims. Upon receipt In the event of a claim (an “Indemnity Claim”) being made by a third party against a party to this Agreement (the “Indemnified Party”) in respect of which, subject to Sections 10.2 and 10.3, another party to this Agreement (the “Indemnifier”) is or may be obligated under or arising out of this Agreement to indemnify, pay damages to or otherwise compensate the Indemnified Party, the following provisions shall apply. The Indemnified Party shall promptly give written notice to the Indemnifier of any Indemnity Claim in respect of which the Indemnified Party intends to claim for indemnification against the Indemnifier. Such notice shall specify with reasonable particularity (to the extent that the information is available) the nature of the Indemnity Claim. The Indemnifier may, at its own expense, assume control of the negotiation, settlement and defense of such Indemnity Claim. The Indemnified Party shall co-operate with the Indemnifier in respect of such Indemnity Claim and the Indemnifier shall reimburse the Indemnified Party for all the Indemnified Party's reasonable expenses as a result of the Indemnifier's assumption of such Indemnity Claim and arising from the Indemnified Party's co-operation. The Indemnified Party will have the right to participate in the negotiation, settlement and defense of such Indemnity Claim at its own expense and will have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Indemnifier and the Indemnified Party shall be retained by the Indemnifying Indemnifier. If the Indemnifier fails to defend any Indemnity Claim within a reasonable time, the Indemnified Party will be entitled to assume control of a notice from the Indemnity Claim at the expense of the Indemnifier and the Indemnifier will be bound by the results obtained by the Indemnified Party with respect to such Indemnity Claim. The following provisions shall also apply with respect to Indemnity Claims: (a) In the event that any claim Indemnity Claim is of a third party against the Indemnified Party, for which nature such that the Indemnified Party seeks indemnification hereunderis legally bound or required by applicable law to make a payment to any person (a “Third Party”) with respect to such Indemnity Claim before the completion of settlement negotiations or related legal proceedings, including, without limitation, the Indemnifying Party shall have the right posting of any security to assume the defense stay any process of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense execution or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimjudgment, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel Indemnifier shall be at the expense obligated to make such payment or post security therefor on behalf of the Indemnified Party. If the Indemnifying Indemnifier fails to do so, the Indemnified Party has assumed may make such payment or post security therefor and the defense Indemnifier shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for any such payment or cause the security to be replaced and released. If the amount of any claim against liability of the Indemnified Party under the Indemnity Claim in respect of which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifier to the Indemnified Party, the Indemnifying Indemnified Party shall have shall, forthwith after receipt of the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatdifference from the Third Party, pay the amount of such difference to the extent that such Indemnifier. (b) Except in the circumstance contemplated by Section 10.4(a) above, and unless the Indemnifier fails to assume control of the negotiation, settlement requires and defense of any Indemnity Claim, the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without negotiate, settle, compromise or pay any Indemnity Claim except with the prior written consent of the Indemnifier (which consent shall not be unreasonably withheld). (c) The Indemnified Party shall not permit any right of appeal in respect of any Indemnity Claim to terminate without giving the Indemnifier notice thereof and an opportunity to contest such Indemnity Claim. (d) The Indemnified Party and the Indemnifier shall co-operate fully with each other with respect to Indemnity Claims, shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available) and shall each designate a senior officer who will keep himself or herself informed about and be prepared to discuss the Indemnity Claim with his or her counterpart and with counsel at all reasonable times. (e) Notwithstanding the above provisions of this Section 10.4, the Indemnifier shall not settle any Indemnity Claim or conduct any related legal or administrative proceeding in a manner which would, in the opinion of the Indemnified Party, such consent not to be unreasonably withheldacting reasonably, conditioned or delayed. If the Indemnifying Party does not assume the defense of have a third party claim and disputes Material adverse impact on the Indemnified Party’s right . (f) The provisions of this Section 10.4 are intended to indemnificationset out the procedures to be followed with respect to an Indemnity Claim and, provided the Indemnified Party shall have follows such procedures in all Material respects, nothing contained in this Section 10.4 will derogate from the right Indemnifier's obligations to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that indemnify the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt If the Indemnified ----------------------------- Party's claim for indemnification is based on a claim, demand, action or proceeding, judicial or otherwise, brought by a third party, and except in the event that a party is disputing that it has any indemnification obligation to the other party (in which event the provisions of Section 4.03 below shall apply), within the thirty (30) day period referred to in Section 4.01 above, (a) the Indemnified Party may, by giving written notice thereof to the Indemnifying Party, require the Indemnifying Party of a to assume, or (b) the Indemnifying Party may at its option and by giving written notice from thereof to the Indemnified Party with respect elect to any claim of a third party against the Indemnified Partyassume, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, third-party claim at its sole cost and the Indemnified Party expense. Any such contest shall cooperate to the extent reasonably requested be conducted by attorneys employed by the Indemnifying Party in defense or prosecution thereof and shall furnish such recordsParty, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, but the Indemnified Party shall have the right to employ participate in such proceedings and to be represented by attorneys of its own counsel in any such case, but the fees and expenses of such counsel shall be choosing at the expense of the Indemnified Party's sole cost and expense. If the Indemnifying Party has assumed assumes the defense of any claim against the Indemnified Partysuch third-party claim, the Indemnifying Party shall have may settle or compromise the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party so long as such settlement does not impose any obligation or restriction of any nature on the Indemnified Party. The Indemnifying Party shall pay to the Indemnified Party in cash the amount for which the Indemnified Party is entitled to be indemnified within fifteen (15) days after the settlement or compromise of such third-party claim or the final unappealable judgment of a court of competent jurisdiction. If the Indemnified Party does not require the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed. If and the Indemnifying Party does not elect, to assume the defense of a third any such third-party claim and disputes claim, the Indemnifying Party shall be bound by the result obtained with respect thereto by the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by The duty to defend hereunder is wholly independent of and separate from the Indemnifying Party duty to indemnify and such duty to defend exists regardless of any ultimate liability of the indemnifying party. Such defense obligation shall arise immediately upon presentation of written notice to the indemnifying party of a notice from the Indemnified Claim by any indemnified party. Promptly following receipt of any written claim or legal proceeding asserted by a person or entity which is not a party to this Amendment (“Third Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderClaim”), the Indemnifying Party indemnified party shall have notify the right to assume indemnifying party of such claim in writing. In matters that pose no conflict of interest, the indemnifying party thereafter shall undertake and diligently pursue the defense of such claim, and the Indemnified Third Party shall cooperate Claim with counsel reasonably acceptable to the extent reasonably requested by indemnified party; provided, however, that the Indemnifying Party in defense indemnifying party shall not consent to entry of judgment or prosecution thereof enter into any settlement agreement without the consent of the indemnified party, which does not include a complete and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by unconditional agreement of the Indemnifying Party in connection therewithindemnified party or which imposes injunctive or other equitable relief against the indemnified party. If the Indemnifying Party shall elect indemnifying party fails to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume diligently pursue the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationThird Party Claim, the Indemnified indemnified party may defend against such Third Party shall have Claim in such manner as it may deem appropriate, including without limitation, settlement thereof on such terms as the right indemnified party may reasonably deem appropriate, and to assume control of pursue such remedies as may be available to the defense of such claim through counsel of its choiceindemnified party against the indemnifying party. Notwithstanding the foregoing, the reasonable costs indemnified party shall not consent to entry of which shall be at judgment or enter into any settlement agreement without the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such consent which does not to be unreasonably withheld, conditioned include a complete and unconditional agreement of indemnifying party or delayedwhich imposes injunctive or other equitable relief against indemnifying party.

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third-party claim or any threatened third-party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third-party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third-party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 6.06(a) with respect to such third-party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third-party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of any claim against the Indemnified Partyan indemnification third-party claim, then: (i) Except as set forth in Section 6.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s Representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided, that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third-party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third-party claim within forty-five (45) days of receipt of notice of such claim in accordance with Section 6.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third-party claim following any such acceptance, (iii) the third-party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one (1) or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party or (v) the third-party claim includes damages that could exceed the limitations in Section 6.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third-party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third-party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third-party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this Article VI in respect of such third-party claim, then the Losses recoverable by the Indemnified Party shall include all reasonable costs and expenses, including the defense set forth herein. (c) No third-party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No third-party claim may be settled by the Indemnifying Party without notice to, and the written consent of, the Indemnified Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 6.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third–party claim or any threatened third–party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third–party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third–party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 7.06(a) with respect to such third–party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third–party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of any claim against the Indemnified Partyan indemnification third–party claim, then: (i) Except as set forth in Section 7.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s Representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided, that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third–party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third–party claim within thirty (30) days of receipt of notice of such claim in accordance with Section 7.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third–party claim following any such acceptance, (iii) the third–party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one (1) or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party or (v) the third–party claim includes damages that could exceed the limitations in Section 7.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third–party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third–party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third–party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this Article VII in respect of such third–party claim, then the Losses recoverable by the Indemnified Party shall include all reasonable costs and expenses, including the defense set forth herein. (c) No third–party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No third–party claim may be settled by the Indemnifying Party without notice to, and the written consent of, the Indemnified Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 7.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third-party claim or any threatened third-party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third-party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third-party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 8.06(a) with respect to such third-party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third-party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of any claim against the Indemnified Partyan indemnification third-party claim, then: (i) Except as set forth in Section 8.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s Representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided, that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third-party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third-party claim within forty-five (45) days of receipt of notice of such claim in accordance with Section 8.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third-party claim following any such acceptance, (iii) the third-party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one (1) or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party or (v) the third-party claim includes damages that could exceed the limitations in Section 8.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third-party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third-party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third-party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this Article VIII in respect of such third-party claim, then the Losses recoverable by the Indemnified Party shall include all reasonable costs and expenses, including the defense set forth herein. (c) No third-party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 8.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with With respect to any action or any claim set forth in a Notice of Claim relating to a third third-party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderclaim, the Indemnifying Party may defend, in good faith and at its expense, any such claim or demand, and the Injured Party, at its expense, shall have the right right, but not the obligation, to assume participate (but not control) at its expense in the defense of any such third-party claim. So long as the Indemnifying Party assumes and thereafter diligently defends any such third-party claim, the Injured Party shall not settle or compromise such third-party claim without the consent of the Indemnifying Party. If such claim is settled by the Injured Party without the Indemnifying Party’s consent, the Injured Party shall be deemed to have waived all rights hereunder for money damages arising out of such claim. The Indemnifying Party may settle or compromise such third-party claim without the consent of the Injured Party solely for monetary damages with no admission of fault on the part of the Injured Party, unless there has not been a complete release of the Injured Party, in which case the Indemnifying Party may not settle or compromise such third-party claim without the consent of the Injured Party, which consent shall not be unreasonably withheld. The Injured Party shall make available to the Indemnifying Party or its representatives all records and the Indemnified other materials reasonably required for use in contesting any third-party claim.The Injured Party shall cooperate to the extent reasonably requested by fully with the Indemnifying Party in the defense or prosecution thereof and shall furnish such records, information and testimony and attend of all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithclaims. If the Indemnifying Party shall elect elects not to assume the defense of defend any such claimthird-party claims, or elects to defend such claims but thereafter fails to diligently pursue such defense, the Indemnified Injured Party shall have the right no obligation to employ its own counsel in do so, but may defend, settle or compromise any such case, but the fees and expenses of such counsel shall be third-party claim at the risk and expense of the Indemnified Indemnifying Party. If the The Indemnifying Party has assumed the defense of will not, however, be responsible for any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought Losses if and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, they arise from action taken or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not omitted to be unreasonably withheldtaken by the Injured Party in bad faith, conditioned fraudulently, negligently or delayed. If the Indemnifying Party does not assume the defense as a result of a third party claim and disputes breach of this Agreement by the Indemnified Injured Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt (a) Subject to Section 8.8(d), upon receiving a Notice of Claim relating to any Third Party Claim, the Indemnifying Party shall be entitled to participate in the investigation and defense of such Third Party Claim and, if it so elects, to assume the investigation and defense of such Third Party Claim with counsel selected by the Indemnifying Party (and reasonably acceptable to the Indemnified Party). The Indemnified Party shall cooperate in good faith in any such defense. The Indemnified Party shall have the right, at its own cost and expense, to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. (b) In order to assume the investigation and defense of a Third Party Claim, the Indemnifying Party must give the Indemnified Party written notice from of its election and acceptance of the defense within 20 days of the Indemnifying Party’s receipt of the Notice of Claim. (c) Subject to Section 8.8(d), if the Indemnifying Party assumes the investigation and defense of a Third Party Claim: (i) the Indemnifying Party will pay for all costs and expenses of the investigation and defense of the Third Party Claim except that the Indemnifying Party will not, so long as it diligently conducts such defense, be liable to the Indemnified Party for any fees of other counsel or any other expenses with respect to the defense of the Third Party Claim incurred by the Indemnified Party after the date the Indemnifying Party validly exercised its right to assume the investigation and defense of the Third Party Claim; (ii) the Indemnifying Party will reimburse the Indemnified Party for all reasonable costs and expenses incurred by the Indemnified Party in connection with the investigation and defense of the Third Party Claim prior to the date the Indemnifying Party validly exercised its right to assume the investigation and defense of the Third Party Claim; and (iii) if the Indemnifying Party thereafter fails to defend the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such defense and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Third Party Claim. (d) Where the named parties to any claim of a third party against the Indemnified Party, for which Third Party Claim include the Indemnified Party seeks indemnification hereunderas well as the Indemnifying Party and the Indemnified Party determines in good faith, based on written advice from its legal counsel, that joint representation would be inappropriate due to the actual or potential differing interests between them or there may be one or more legal defenses available to the Indemnified Party which are different from or in addition to those available to the Indemnifying Party, and the Indemnified Party notifies the Indemnifying Party in writing that it elects to retain separate counsel, the Indemnifying Party shall not have the right to assume the defense of such claim, and Third Party Claim on behalf of the Indemnified Party and shall cooperate be liable to pay the reasonable fees and expenses of counsel of the Indemnified Party. (e) If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable Law to incur losses or make a payment to any Third Party with respect to the extent reasonably requested Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may incur such Losses or make such payment and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under such Third Party Claim, as finally determined, is less than the amount that was paid by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party shall, forthwith after the receipt of the difference from the Third Party, pay the amount of such difference, together with any interest thereon paid by the Third Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then to the Indemnifying Party. In addition, the Indemnifying Party shall post all security required by any court, regulatory body or other authority having jurisdiction, including without limitation, for purposes of enabling the Indemnifying Party to contest any Third Party Claim. (f) If the Indemnified Party undertakes the defense of the Third Party Claim, the Indemnifying Party will not be bound by any compromise or settlement of the Third Party Claim effected without the consent of the Indemnifying Party (which consent may not be unreasonably withheld, conditioned or delayed) unless such compromise or settlement includes an unconditional release of the Indemnifying Party from all liability and obligations arising from such Third Party Claim. (g) The Indemnified Party and the Indemnifying Party shall cooperate fully with each other with respect to Third Party Claims, and shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available). (h) The Indemnifying Party will not be permitted to compromise and settle such claim or to cause a compromise and settlement of a Third Party Claim without the prior written consent of the Indemnified Party, such which consent may not to be unreasonably withheld, conditioned or delayed. If , unless: (i) the terms of the compromise and settlement require only the payment of money for which the Indemnified Party is entitled to full indemnification under this Agreement and the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right agrees to indemnification, timely pay such amount in full; and (ii) the Indemnified Party shall have the right is not required to assume control admit any wrongdoing, take or refrain from taking any action, acknowledge any rights of the defense of such claim through counsel of its choice, Person making the reasonable costs of which shall be at the Indemnifying Party’s expense in the event Third Party Claim or waive any rights that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance Party may have against the Indemnified Person making the Third Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedClaim.

Defense of Third Party Claims. Upon After receipt by the Indemnifying Party of an Indemnification Notice in respect of a notice from the Indemnified Party with respect to any claim of Claim brought by a third party against the Indemnified Third Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party or Parties shall have the right to assume the defense (at the Indemnifying Party or Parties’ sole cost and expense) of any such claim, and claim through counsel of the Indemnifying Party’s or Parties’ own choosing by so notifying the Indemnified Party in writing within twenty (20) days of receipt of such Indemnification Notice; provided, however, that any such counsel shall cooperate be reasonably satisfactory to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithIndemnitee. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party Each Indemnitee shall have the right to employ its own separate counsel in any such caseClaim and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If Indemnitee unless: (i) the Indemnifying Party has assumed agreed to pay such expenses; (ii) the Indemnifying Party has failed promptly to assume the defense of any claim against the and employ counsel reasonably satisfactory to such Indemnified Party; or (iii) the named parties to any such Claim (including any impleaded parties) include any Indemnitee and the Indemnifying Party or an affiliate of the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that either (x) there may be one or more legal defenses available to it which are different from or in addition to those available to the Indemnifying Party or such affiliate or (y) a conflict of interest may exist if such counsel represents such Indemnitee and the Indemnifying Party or its affiliate; provided, that, if such Indemnitee notifies the Indemnifying Party in writing that it elects to employ separate counsel in the circumstances described in clause (i), (ii) or (iii) above, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control the defense thereof and such counsel shall be at the expense of the Indemnifying Party. Without the consent of the Indemnitees, the Indemnifying Parties shall not consent to, and the Indemnitees shall not be required to agree to, the entry of any judgment or enter into any settlement unless such judgment or settlement (i) includes as an unconditional term thereof the giving of a release from all liability with respect to such claim by each claimant or plaintiff to each Indemnitee that is the subject of such third-party Claim, (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of an Indemnitee and (iii) in the case of any Claim regarding Taxes, such judgment or settlement does not and will not, in the reasonable determination of Buyer, give rise or result in an increase in any Tax liability of Buyer, or any of its Affiliates. If an Indemnification Notice is given to an Indemnifying Party and the Indemnifying Party does not, within twenty (20) days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of such claim through counsel of its choiceclaim, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining will be bound by any determination made in such claim or any compromise or settlement effected by the prior written consent of Indemnitee. The Indemnitee and the Indemnifying PartyParty will make available to each other and their attorneys and representatives at all reasonable times, all books and records relating to such consent not Claim and will render to each other such assistance as may reasonably be unreasonably withheld, conditioned or delayedrequested to ensure proper and adequate defense of any such Claim.

Defense of Third Party Claims. Upon receipt by (i) In the Indemnifying event that any Third Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification Claim is made or commenced and an Indemnification Claim is delivered hereunder, the Indemnifying Party shall have 30 days from receipt of the right Indemnification Claim (the "Notice Period") to notify the Indemnitee whether or not the Indemnifying Party will elect to assume the defense and management of such claimThird Party Claim, and prior to such time as it has been notified by the Indemnified Indemnifying Party as to its intention, the Indemnitee shall cooperate take all reasonable actions to preserve its defenses. Election of the extent reasonably requested Indemnifying Party to defend and manage a Third Party Claim shall not be construed to be an admission as to liability for indemnification hereunder. All costs and expenses incurred by the Indemnifying Party in defending and managing such Third Party Claim shall be a Liability of, and shall be paid by, the Indemnifying Party; provided, however, that the amount of such costs and expenses that shall be a Liability of the Indemnifying Party hereunder shall be subject to the limitations set forth in Section 8.4. In the event that the Indemnifying Party notifies the Indemnitee within the Notice Period of its election to assume such defense and management, then such Indemnitee shall permit such Indemnifying Party to assume and control such defense and management, at such Indemnifying Party's expense, and such Indemnifying Party shall not be liable to such Indemnitee for any legal or other expenses subsequently incurred by such Indemnitee in connection with the defense or prosecution thereof management of such Third Party Claim (other than reasonable out-of-pocket costs of investigation). If such Indemnitee desires to participate in any such defense and management, it may do so at its sole cost and expense. The Indemnitee shall furnish such recordsnot settle, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested admit or in any other way materially prejudice a Third Party Claim for which it is indemnified by the Indemnifying Party without the written consent of the Indemnifying Party. Notwithstanding the foregoing, the Indemnitee shall have the sole right to defend, settle or compromise any Third Party Claim with respect to which it has agreed in connection therewith. writing to waive its right to indemnification pursuant to this Agreement. (ii) If the Indemnifying Party shall elect elects not to assume defend the defense of Indemnitee against such claim, the Indemnified Third Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified PartyClaim, then the Indemnifying Party Indemnitee shall not settle such claim without act reasonably and in accordance with its good faith business judgment with respect thereto, and may only consent to the prior written consent entry of the Indemnified Partyany judgment upon, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim or compromise, any such Third Party Claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party. The amount required to be paid in respect of any such Third Party Claim, or, if the same be contested by the Indemnitee, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense) shall be the Liability of the Indemnifying Party hereunder, subject to the limitations set forth in Section 8.4. If the Indemnifying Party has elected to assume the defense and management of such Third Party Claim pursuant to Section 8.3(c)(i), such Indemnifying Party shall be entitled to consent to the entry of any judgment upon, or enter into any settlement or compromise of, such Third Party Claim, which judgment, settlement or compromise shall be binding upon such Indemnitee without such Indemnitee's consent, provided that the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement or compromise that provides for injunctive or non-monetary relief affecting such Indemnitee or that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee of a release of all liability with respect to such Third Party Claim, without the prior written consent of such Indemnitee, which consent shall not be unreasonably withheld, conditioned withheld or delayed. (iii) Such Indemnitee and such Related Party, on the one hand, and such Indemnifying Party, on the other hand, shall cooperate with each other in all reasonable respects in connection with the defense and management of any Third Party Claim, and render such assistance to each other as may be reasonably requested in order to ensure the proper and adequate defense and management thereof, including making available records relating to such Third Party Claim and furnishing, without expense to such Indemnifying Party, such employees of the Indemnitee and such Related Party as may be reasonably necessary for the preparation of such defense and management or for testimony as witnesses.

Defense of Third Party Claims. Upon Should any claim be made or suit or proceeding be instituted against an Indemnitee which, if prosecuted successfully, would be a matter for which such Indemnitee is entitled to indemnification under this Article VII (a "Third Party Claim"), the obligations and liabilities of the parties hereunder with respect to such Third Party Claim shall be subject to the following terms and conditions: (a) Indemnitee shall give the Indemnifying Party written notice of any such Third Party Claim promptly after receipt by Indemnitee of notice thereof, and the Indemnifying Party may, subject to the prior written consent of the Indemnitee, undertake control of the defense thereof by counsel of his or its own choosing reasonably acceptable to Indemnitee. If Indemnifying Party has undertaken control of the defense of the matter, Indemnitee may participate in the defense through his or its own counsel at his or its own expense. In the event the Shareholder as an Indemnitee desires to assume the defense of the matter, the Shareholders shall provide Buyer with reasonable assurances of the Shareholders' ability to bear the costs of such defense and any likely outcome. If, however, the Indemnifying Party fails or refuses to undertake the defense of such Third Party Claim within fifteen (15) days after written notice of such claim has been delivered to the Shareholders by Indemnitee, Indemnitee shall have the right to undertake the defense, compromise and settlement of such Third Party Claim in any manner which the Indemnitee deems is reasonable with counsel of its own choosing; provided, however that the Shareholders may not settle a claim in a manner that would materially affect Buyer's business or that would exceed the value of the Escrow Shares. In the circumstances described in the preceding sentence, Indemnitee shall, promptly upon its assumption of the defense of such Third Party Claim, make an Indemnification Claim as specified in Section 7.3(b), which shall be deemed an Indemnification Claim that is not a Third Party Claim for the purposes of the procedures set forth herein. Failure of Indemnitee to furnish written notice to the Indemnifying Party of a notice Third Party Claim shall not release the Indemnifying Party from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification his or its obligations hereunder, except to the extent he or it is prejudiced by such failure. (b) Indemnitee and the Indemnifying Party shall have the right to assume cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim, claim and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals furnishing employees of Vista as may be reasonably requested by necessary for the preparation of the defense of any such Third Party Claim or for testimony as witness in any proceeding relating to such claim. (c) Unless the Indemnifying Party in connection therewith. If has failed to fulfill his or its obligations under this Article VII, no settlement by Indemnitee of a Third Party Claim shall be made without the prior written consent by or on behalf of the Indemnifying Party Party, which consent shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall not be at the expense of the Indemnified Partyunreasonably withheld or delayed. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Partya Third Party Claim as contemplated by this Section 7.4, no settlement of such Third Party Claim may be made by the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent by or on behalf of the Indemnified PartyIndemnitee, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt (a) If the Indemnified Party’s claim for Indemnification is based, under this Agreement, on an Action, judicial or otherwise, brought by a third party, and the Indemnifying Party does not object under Section 8.4(b), the Indemnifying Party may, participate in the defense of such Action and may assume the defense of such Action with counsel satisfactory to the Indemnified Party if (i) the Indemnified Party agrees to assumption thereof by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, or (ii) the Indemnifying Party shall have confirmed in writing (without reservation or qualification) its obligation to provide indemnification for the right liability asserted in such action. If the Indemnified Party shall reasonably conclude that its interests in such Action are materially different from those of the Indemnifying Party or that it may have defenses that are different from or in addition to assume those available to the Indemnifying Party, the Indemnified Party may use separate counsel to protect such interests and assert such defenses and otherwise participate in the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithAction. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right with counsel satisfactory to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle not be liable for any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate legal expenses (other than investigation expenses) subsequently incurred by the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, unless the Indemnified Party shall have employed separate counsel in accordance with the preceding sentence. (b) The right to indemnification conferred in this Article VIII shall include the right to assume control of be paid by the defense of Indemnifying Party the expenses incurred in defending any proceeding for which such claim through counsel right to indemnification is applicable in advance of its choicefinal disposition (hereinafter an “advancement of expenses”); provided, the reasonable costs however, that, if, but only if, a court or arbitration panel of which competent jurisdiction requires, all amounts paid as an advancement of expenses shall be at repaid to the Indemnifying Party’s expense in the event Party if it shall be Finally Determined that the Indemnified Party’s right of indemnification Party is ultimately established through settlement, compromise not entitled to be indemnified for such expenses under this Agreement or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with otherwise. (c) If an Action is brought by a third party for in which it seeks the liability as between Alloy and xXXxX*s is alleged to be joint or in which the entitlement to indemnification from hereunder is not determinable or as to which there has been a reservation of rights, the Indemnifying Party parties shall cooperate in a joint defense. Such joint defense shall be under the general management and supervision of the party which is expected to bear the greater share of the liability; provided, however, that neither party shall settle or compromise any such joint defense matter without first obtaining the prior written consent of the Indemnifying Partyother. The costs of such joint defense shall be borne as the parties may agree, or in the absence of such agreement, such consent not costs shall be borne by the party incurring such costs, subject to be unreasonably withheld, conditioned or delayedultimate resolution pursuant to Article X hereof.

Defense of Third Party Claims. Upon receipt If the claim or demand set forth in the Notice of Claim given by Indemnitee pursuant to Section 8.5 hereof is a claim or demand asserted by a third party, Indemnitor shall have fifteen (15) business days after the date on which such Notice of Claim is given by the Indemnifying Party Indemnitee to notify Indemnitee in writing of a notice from the Indemnified Party with respect Indemnitor's election to any claim of a defend such third party against claim or demand on behalf of Indemnitee. If Indemnitor elects to defend such third party claim or demand, Indemnitee shall make available to Indemnitor and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnified PartyIndemnitee's possession or under the Indemnitee's control as is reasonably required by Indemnitor and shall otherwise cooperate with and assist Indemnitor in the defense of such third party claim in good faith. Indemnitee shall not pay, for which the Indemnified Party seeks indemnification hereundersettle or compromise such third party claim or demand. If Indemnitor elects to defend such third party claim or demand, the Indemnifying Party Indemnitee shall have the right to assume participate in the defense of such claimthird party claim or demand, and at Indemnitee's own expense. In the Indemnified Party shall cooperate event, however, that the named parties to the extent action or proceeding include both Indemnitor and Indemnitee and Indemnitee reasonably requested determines that representation by counsel to Indemnitor of both Indemnitor and Indemnitee may present such counsel with a conflict of interest, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and Indemnitor will pay the Indemnifying Party in defense or prosecution thereof reasonable fees and shall furnish disbursements of such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithcounsel. If the Indemnifying Party shall Indemnitor does not elect to assume the defense of defend such claimthird party claim or demand or does not defend such third party claim or demand in good faith, the Indemnified Party Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at Indemnitor's expense, to employ its own counsel defend such third party claim or demand; provided, however, that (a) Indemnitor shall not have any obligation to participate in the defense of, or defend, any such case, but the fees third party claim or demand; and expenses (b) Indemnitee's defense of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed or its participation in the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes or demand shall not in any way diminish or lessen the Indemnified Party’s right to indemnification, obligations of Indemnitor under the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right agreements of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedset forth in this Article VIII.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed, or claim asserted against an Indemnified Party by the Indemnifying Party of a notice from third party and the Indemnified Party with respect is entitled to indemnification pursuant to this Agreement, written notice thereof shall be given to the relevant Indemnifying Party as promptly as practicable (and in any claim event no later than 30 days after the service of a third party against the Indemnified Party, for which citation or summons or receipt of other written notice of such claim); the failure of any Indemnified Party seeks to give timely notice shall limit the rights to indemnification hereunder, hereunder only if and to the extent that (i) such failure to give timely notice materially affects the ability or right of the relevant Indemnifying Party shall have the right to assume participate in the defense of such lawsuit or enforcement action or claim, and the Indemnified Party shall cooperate (ii) actual notice is not given to the extent reasonably requested by the relevant Indemnifying Party in defense within a reasonable time, or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, (iii) to the extent that such settlement requires failure to give timely notice causes the relevant Indemnifying Party to incur additional expense with respect to such lawsuit or enforcement action, the Indemnified Party fails to takepromptly reimburse the relevant Indemnifying Party for such additional expense. The relevant Indemnifying Party shall be entitled, if it so elects, to take control of the defense and investigation of such lawsuit, action or prohibits claim, and to employ and engage attorneys of its own choice to handle and defend the same, at the relevant Indemnifying Party's cost, risk and expense; and such Indemnified Party shall cooperate in all reasonable respects, at its cost, risk and expense, with the relevant Indemnifying Party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the Indemnified Party from takingmay, at its own cost, participate in (but not control) such investigation, trial and defense of such lawsuit or action and any action appeal arising therefrom. If the relevant Indemnifying Party does not elect to take control of the defense and investigation of said lawsuit or purports to obligate the Indemnified Partyaction, then the Indemnifying Indemnified Party shall not settle remain in control thereof in such claim manner as it deems appropriate. Neither party shall enter into any settlement, adjustment or compromise of any lawsuit or action without the prior written consent of the Indemnified Party, such other party which consent will not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt The Indemnifying Party shall be entitled to participate in the defense of the Third Party Claim and, if it so chooses, to assume the defense thereof, at its own expense, with counsel selected by the Indemnifying Party (so long as such counsel is not reasonably objected to by the Indemnified Party) if: (i) the Indemnifying Party acknowledges its obligation to indemnify the Indemnified Party for any indemnifiable Losses resulting from such Third Party Claim; (ii) such Third Party Claim involves (and continues to involve) solely monetary damages which are not reasonably likely to exceed the applicable amount in Section 7.4(a) or (b), as applicable; (iii) such Third Party Claim does not relate to or arise in connection with any criminal action; (iv) the Indemnifying Party makes reasonably adequate provision to satisfy the Indemnified Party of a the Indemnifying Party’s ability to defend, satisfy and discharge such Third-Party Claim; (v) no defense exists for the Indemnified Party which is not available to the Indemnifying Party; and (vi) if the named parties to such Third Party Claim (including impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would not be inappropriate due to actual or potential differing interests between them (as determined by the Indemnified Party in its reasonable discretion) (collectively, the “Defense Conditions”). If the Indemnifying Party elects to assume the defense of any Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if (i) the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim within five (5) Business Days after receiving written notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which that the Indemnified Party seeks indemnification hereunder, believes the Indemnifying Party shall have has failed to take such steps, (ii) the right Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all indemnifiable Losses relating to the matter, or (iii) if any of the Defense Conditions cease to be satisfied for any reason, the Indemnified Party may assume the defense of such claimits own defense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense will be liable for all costs or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party expenses paid or incurred in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, and the Indemnified Party shall have the right to employ its own counsel in compromise or settle such Third Party Claim with the consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed) and, if settled with such consent, or if there is a final judgment against the Indemnified Party, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. In the event the Indemnifying Party has assumed control of the defense of the Third Party Claim, the Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of any such case, but action or suit through counsel chosen by the Indemnified Party; provided that such counsel is not reasonably objected to by the Indemnifying Party and the fees and expenses of such counsel shall be at the expense of borne by the Indemnified Party. If The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party in the defense of a Third Party Claim for any period during which the Indemnifying Party has not assumed the defense of any claim against thereof (other than during the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, period prior to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, time the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from notified the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedThird Party Claim).

Defense of Third Party Claims. Upon receipt by If the Indemnifying Party assumes the defense of a notice from the Indemnified Third Party with respect Claim pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection ‎10.4(b), the Indemnifying Party will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall, and shall cause its Affiliates to, cooperate with the Indemnifying Party and its counsel, including making available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnitee’s possession or under the Indemnitee’s control relating thereto as is reasonably required by the Indemnifying Party. The Indemnitee will have the right to assume the defense of participate in such claimdefense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseincluding appointing separate counsel, but the fees and expenses costs of such counsel participation shall be at borne solely by the expense of the Indemnified PartyIndemnitee. If the Indemnifying Party has assumed the defense of any claim against the Indemnified PartySubject to Section ‎10.4(a), the Indemnifying Party shall have will, in consultation with the right Indemnitee, make all decisions and determine all actions to settle any claim for which indemnification has been sought and is available hereunder; provided that, be taken with respect to the extent defense and settlement of the Third Party Claim; provided, however, that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not pay, compromise, settle or otherwise dispose of such claim Third Party Claim without the prior written consent of the Indemnified PartyIndemnitee, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party , provided that it will not be deemed to be unreasonable for an Indemnitee to withhold its consent if (A) such payment, compromise, settlement or disposition does not assume involve solely the defense payment of a third party claim and disputes money; (B) such payment, compromise, settlement or disposition does not involve solely the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control payment of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from money by the Indemnifying Party without first obtaining recourse to the prior written Indemnitee; (C) such payment, compromise, settlement or disposition involves a finding or admission of violation of any Law, Order or Permit or rights of any Person by the Indemnitee or its Affiliates; or (D) such payment, compromise, settlement or disposition does not contain an unconditional release of the Indemnitee from the subject matter of such payment, compromise, settlement or disposition. In no event will the Indemnifying Party have authority to agree, without the consent of the Indemnitee, to any relief binding on the Indemnitee other than the payment of money damages by the Indemnifying Party, such consent not Party without recourse to be unreasonably withheld, conditioned or delayedthe Indemnitee.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third The indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense conduct and control, through counsel of such claimtheir own choosing, and the Indemnified Party shall cooperate reasonably acceptable to the extent reasonably requested by the Indemnifying Party in defense indemnified party, any third party Legal Action or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseother Claim, but the fees indemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that if the indemnifying party shall fail to defend any such Legal Action or other Claim, then the indemnified party may defend, through counsel of its own choosing, such Legal Action or other Claim, and (so long as it gives the indemnifying party at least fifteen (15) days' written notice of the terms of the proposed settlement thereof and permits the indemnifying party to then undertake the defense thereof) settle such Legal Action or other Claim and to recover the amount of such settlement or of any judgment and the reasonable costs and expenses of such counsel defense. The indemnifying party shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to not compromise or settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, Legal Action or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim other Claim without the prior written consent of the Indemnified Partyindemnified party; provided, however, that if the indemnified party fails or refuses to consent in writing to any compromise of settlement proposed by the indemnifying party and agreed to in writing by the claimant in such consent Legal Action or other Claim (the "Settlement Proposal") within ten (10) business days after receipt of written notice of all of the material terms and conditions of the Settlement Proposal, and such terms and conditions (a) include a full release of the indemnified party from the Legal Action or other Claim which is the subject of the Settlement Proposal, and (b) if the indemnified party is ATS, do not to be unreasonably withheldinclude any term or condition which would restrict in any material manner the continued ownership or operations of the Diablo Assets or the conduct of the Diablo Business in substantially the manner then being theretofore owned, conditioned or delayed. If operated and conducted by ATS, then, unless the Indemnifying Party does not assume indemnifying party forthwith withdraws the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationSettlement Proposal, the Indemnified Party indemnified party (i) shall have the right but not the obligation to assume control undertake the conduct of the defense of such claim through counsel Legal Action or other Claim, and (ii) whether or not it shall so undertake the defense of its choicesuch Legal Action or other Claim, shall bear, and shall indemnify and hold the reasonable indemnifying party harmless from, all Loss and Expense arising from such Legal Action or other Claim (to the extent not theretofore (x) accrued with respect to the costs and expenses of which shall be at the Indemnifying Party’s expense defense of such Legal Action or other Claim or (y) paid with respect to such Legal Action or other Claim) in excess of the amount contained in the event Settlement Proposal, it being understood, in such event, that the Indemnified Party’s right indemnifying party shall bear all Loss and Expense, including subsequently incurred Loss and Expense (including without limitation those attributable to legal fees and expenses) up to the amount contained in the Settlement Proposal, even if the ultimate disposition of indemnification is ultimately established through settlement, compromise such Legal Action or other legal proceeding. In no circumstance may Claim results in payments to the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from claimant of less than those contained in the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedSettlement Proposal.

Defense of Third Party Claims. Upon receipt If any claim set forth in the Notice of Claim given by the Indemnifying Party of a notice from the an Indemnified Party with respect pursuant to any Section 8.5 hereof is a claim of asserted by a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderparty, the Indemnifying Party shall have 30 days after the right to assume date that the defense Notice of such claim, and Claim is given or deemed given by the Indemnified Party shall cooperate to notify the extent reasonably requested by Indemnified Party in writing of the Indemnifying Party in defense or prosecution thereof and shall furnish Party’s election to defend such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by third party claim on behalf of the Indemnifying Party in connection therewithIndemnified Party. If the Indemnifying Party elects to defend such third party claim, the Indemnified Party shall elect make available to assume the Indemnifying Party and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control as is reasonably required by the Indemnifying Party and shall otherwise cooperate with and assist the Indemnifying Party in the defense of such third party claim. Regardless of which party is defending such third party claim, the Indemnified Party shall not pay, settle or compromise such third party claim without the consent of the Indemnifying Party. If the Indemnifying Party elects to defend such third party claim, the Indemnified Party shall have the right to participate in the defense of such third party claim, at the Indemnified Party’s own expense. In the event, however, that the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and the Indemnified Party may present such counsel with a conflict of interest, then such Indemnified Party may employ its own separate counsel to represent or defend it in any such caseaction or proceeding and the Indemnifying Party will, but subject to the provisions of this Article 8, pay the reasonable fees and expenses disbursements of such counsel shall be at the expense of the Indemnified Partywhen due under such counsel’s customary billing practices. If the Indemnifying Party has assumed does not elect to defend such third party claim or does not defend such third party claim in good faith, the Indemnified Party shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnifying Party’s expense, to defend such third party claim; provided, however, that such Indemnified Party’s defense of or its participation in the defense of any such third party claim against shall not in any way diminish or lessen the indemnification obligations of the Indemnifying Party under this Article 8. If the Indemnifying Party subsequently reasonably determines that the Indemnified PartyParty is not defending such third party claim in good faith, the Indemnifying Party shall have the right, in addition to any other right or remedy it may have hereunder, to settle any elect to assume the defense of such third party claim for which indemnification has been sought and is available hereunder; provided thatand, to the extent that such settlement requires the Indemnified Party to takehas not defended such third party claim in good faith, and whether or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then not the Indemnifying Party shall not settle such claim without have subsequently assumed the prior written consent defense thereof, the indemnification obligations of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume under this Article 9 shall be reduced or eliminated to the defense of a third party claim and disputes the Indemnified Party’s right extent that such failure to indemnification, the Indemnified Party defend in good faith shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at materially adversely affected the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlementability to defend against, compromise settle or other legal proceeding. In no circumstance may the satisfy any liability, damage, loss, claim or demand for which such Indemnified Party compromise or settle a claim with a third party for which it seeks is otherwise entitled to indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedhereunder.

Defense of Third Party Claims. Upon receipt by (a) In the Indemnifying Party event of a notice Third Party Claim, the Indemnitor shall have thirty (30) days (or such lesser time as may be necessary to comply with statutory response requirements for litigation claims that are included in such Third Party Claims) from receipt of the Indemnified Party Indemnification Claim (the "Notice Period") to notify the Indemnitee, (i) whether or not the Indemnitor disputes its liability to the Indemnitee with respect to such claim, and (ii) notwithstanding any such dispute, whether or not the Indemnitor will, at its sole cost and expense, defend the Indemnitee against such claim. (b) In the event that the Indemnitor notifies the Indemnitee within the Notice Period that it will defend the Indemnitee against such claim of a third party against the Indemnified Partythen, for which the Indemnified Party seeks indemnification hereunderexcept as hereinafter provided, the Indemnifying Party Indemnitor shall have the right to assume defend the defense of such claimIndemnitee by appropriate proceedings, and the Indemnified Party which proceedings shall cooperate to the extent reasonably requested be promptly settled or prosecuted by the Indemnifying Party Indemnitor to a final conclusion in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals a manner as may be reasonably requested by to minimize the Indemnifying Party in connection therewithrisk of the Indemnitee becoming subject to Liability for any other significant matter. If the Indemnifying Party shall elect Indemnitee desires to assume the defense of such claimparticipate in, the Indemnified Party shall have the right to employ its own counsel in but not control, any such casedefense or settlement, but the fees it may do so at its sole cost and expenses of such counsel shall be at the expense of the Indemnified Partyexpense. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party Indemnitor does not assume the defense of such claim with counsel reasonably satisfactory to the Indemnitee within fifteen (15) days from receipt of notice of a third party claim and disputes by the Indemnified Party’s right Indemnitee, or (i) legal counsel for the Indemnitee reasonably believes that there are or may be legal defenses available to indemnificationthe Indemnitee which are different from or additional to those available to the Indemnitor, or (ii) the Indemnitor shall assume the defense of the claim and, in the reasonable opinion of the Indemnitee, fail to diligently prosecute such defense, the Indemnified Party Indemnitee shall have the right to control the defense or settlement of any such claim or demand and its reasonable costs and expenses shall be included as part of the indemnification obligation of the Indemnitor. If in the reasonable opinion of the Indemnitee (x) any such claim or the litigation or resolution of any such claim involves an issue or matter that is reasonably likely to have a material adverse effect on the Indemnitee, including the administration of the Tax Returns of the Indemnitee or a dispute with a significant customer or supplier of the Business, or (y) the claim or litigation involves the potential award of equitable relief against the Indemnitee, the Indemnitee shall have the right to control the defense or settlement of any such claim or demand at its own cost and expense with counsel reasonably satisfactory to the Indemnitor. If the Indemnitee should elect to exercise the right to assume control control, the Indemnitor shall have the right to participate in, but not control, the defense or settlement of such claim at its sole cost and expense. (c) Except where the Indemnitor disputes its liability in a timely manner under this Section 10.4, to the extent that the Indemnitee suffers actual prejudice, the Indemnitor shall be conclusively liable for the amount of any Loss resulting from such claim or defense. (d) The Indemnitee and the Indemnitor shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing, without expense to the Indemnitor, management employees of the Indemnitee as may be reasonably necessary for the preparation of the defense of any such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense or for testimony as witness in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, any proceeding relating to such consent not to be unreasonably withheld, conditioned or delayedclaim.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action subject to indemnification hereunder is filed against any Indemnified Party by a third party, written notice thereof shall be given to the Indemnifying Party as promptly as practicable (other than Tax Claims) as provided in Section 7.5. The failure of a notice from the any Indemnified Party with respect to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party is actually prejudiced by such failure. Notwithstanding anything contained in this Section 7.6 to the contrary, any claim for indemnification hereunder that is not asserted by notice given as herein provided that specifically identifies a particular breach and the underlying facts and Losses relating thereto during the applicable period of a third party against survival as set forth in Section 7.1 may not be pursued and is hereby irrevocably waived upon and after the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderexpiration of such period of survival. After such notice, the Indemnifying Party shall have the right be entitled, if it so elects, at its own cost, risk and expense (a) to assume take control of the defense and investigation of such claimlawsuit or action, (b) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, in which event the Indemnified Party shall be entitled, at the Indemnifying Party's cost, risk and expense, to separate counsel of its own choosing, and (c) to compromise or settle such claim. The Indemnified Party shall cooperate with the Indemnifying Party and its attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnified Party in defense or prosecution thereof and shall furnish such records, its affiliates available on a mutually convenient basis to provide additional information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party explanation of any materials provided hereunder. The parties shall cooperate with each other in connection therewithany notifications to insurers. If the Indemnifying Party shall elect fails to assume the defense of such claim within ten days after notice, the Indemnified Party against which the claim has been asserted (upon delivering notice to such effect to the Indemnifying Party) has the right to undertake, at the Indemnifying Party's cost, risk and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Indemnifying Party. If the Indemnified Party assumes the defense of the claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If will keep the Indemnifying Party has assumed reasonably informed of the defense progress of any claim against the Indemnified Partysuch defense, compromise or settlement. The Indemnifying Party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 7.6 and any final judgment (subject to any right of appeal), and the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought indemnify and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits hold harmless the Indemnified Party from taking, and against any action Losses by reason of any such settlement or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedjudgment.

Defense of Third Party Claims. Upon receipt (a) If any claim or action by a third party arises after the Effective Date for which an Indemnifying Party is liable under the terms of a notice from this Agreement, then the Indemnified Party with respect shall notify the Indemnifying Party, within thirty (30) days after such claim or action arises and is known to any claim of a third party against the Indemnified Party, for which and shall give the Indemnifying Party a reasonable opportunity, at its sole cost and expense, to take part in any examination of the books and records of the Shareholders, Company or Subsidiary, to conduct any proceedings or negotiations in connection therewith and necessary or appropriate to defend the Indemnified Party, to take all other required steps or proceedings to settle or defend any such claim or action, and to employ counsel to contest any such claim or action in the name of the Indemnified Party seeks indemnification hereunder, or otherwise. If the Indemnifying Party shall have the right wishes to assume the defense of such claimclaim or action, it shall give written notice to the Indemnified Party, and within ten (10) days thereafter the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof permit, and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimthereafter assume, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any such claim against or action, through counsel reasonably satisfactory to the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle may participate in such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. defense at its own expense. (b) If the Indemnifying Party does not assume the defense of a third party any such claim and disputes the Indemnified Party’s right to indemnificationor action, then the Indemnified Party shall have the right to assume control of the defense of may defend against such claim through counsel of its choice, the reasonable costs of which shall be at or action in such manner as it may deem appropriate (provided that the Indemnifying Party’s expense Party may participate in the event such defense at its own expense); provided, however, that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise Party may not settle any such claim or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party action without first obtaining the prior written consent of the Indemnifying Party, such which consent shall not to be unreasonably withheld, conditioned withheld or delayed. If no settlement of such claim or action is made, the Indemnifying Party (subject to the limitations contained in Section 10.6) shall satisfy any judgment rendered with respect to such claim or in such action, before the Indemnified Party is required to do so, and pay all expenses, legal or otherwise, reasonably and necessarily incurred by the Indemnified Party in the defense of such claim or Litigation. (c) If a judgment is rendered against an Indemnified Party in any action covered by the indemnification hereunder, or any lien in respect of such judgment attaches to any of the assets of any of the an Indemnified Party, the Indemnifying Party shall immediately upon such entry or attachment pay such judgment in full or discharge such lien (subject to the limitation contained in Section 10.6) unless, at the expense and direction of the Indemnifying Party, an appeal is taken under which the execution of the judgment or satisfaction of the lien is stayed. If and when a final judgment is rendered in any such action, the Indemnifying Party shall forthwith pay such judgment or discharge such lien (subject to the limitation in contained in Section 10.7) before the Indemnified Party is compelled to do so.

Defense of Third Party Claims. Upon receipt of a Litigation Notice, the applicable Indemnifying Party shall have thirty (30) calendar days after receipt of a Litigation Notice to notify the Claimant in writing that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”) with legal counsel reasonably satisfactory to the applicable Indemnified Parties so long as the Third Party Claim (i) seeks solely money damages (and not injunctive or other equitable relief) and, in the event that the Seller or any of its Affiliates would be the Indemnifying Party, (ii) will have no continuing material adverse effect on the Business or the Company. In the event the Indemnifying Party so assumes the conduct and control of any such Third Party Claim, such assumption of the conduct and control by the Indemnifying Party shall conclusively establish for purposes of a notice from this Agreement that all Indemnity Losses incurred by the Indemnified Parties in connection with such Third Party with respect Claim are within the scope of and subject to any claim indemnification hereunder subject to the limitations set forth in this ‎Article VI. If the Indemnifying Party does not give the foregoing Election Notice during such thirty (30) day period, then the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Third Party Claim in the exercise of a third party against its reasonable discretion. If the Indemnified PartyIndemnifying Party timely gives the foregoing Election Notice, for which the Indemnified Party seeks indemnification hereunder, then the Indemnifying Party shall have the right to assume undertake, conduct and control, at the defense Indemnifying Party’s sole reasonable cost and expense, the conduct and settlement of such claimThird Party Claim, and the Indemnified Party Claimant shall cooperate to the extent reasonably requested by cooperate, at the Indemnifying Party in defense or prosecution thereof Party’s sole reasonable cost and shall furnish such recordsexpense, information including by providing reasonable access during regular business hours to records and testimony and attend all such conferencesPersonnel of the Company, discovery proceedingsas applicable, hearings, trials and appeals as may be reasonably requested by to the Indemnifying Party in connection therewith. If ; provided, however, that (i) the Indemnifying Party shall elect permit the Claimant to assume participate in such conduct or settlement through legal counsel chosen by the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseClaimant, but the fees and expenses of such legal counsel shall be at borne solely by the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified PartyClaimant, and (ii) the Indemnifying Party shall have the right authority to compromise or settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified PartyClaimant if such compromise or settlement (1) contains an unconditional release from all Liability of the Claimant and its Affiliates with respect to such Third Party Claim, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party (2) does not assume result in any Liability to or equitable relief against the defense Claimant and its Affiliates, (3) would not restrict the future activity of the Claimant or any of its Affiliates and (4) would not result in the admission or finding of a third party claim and disputes violation of Law by the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel Claimant or any of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedAffiliates.

Defense of Third Party Claims. Upon receipt If any claim set forth in the Notice of Claim given by the Indemnifying Party of a notice from the an Indemnified Party with respect pursuant to any Section 8.5 hereof is a claim of asserted by a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderparty, the Indemnifying Party shall have 30 days after the right to assume date that the defense Notice of such claim, and Claim is given or deemed given by the Indemnified Party shall cooperate to notify the extent reasonably requested by Indemnified Party in writing of the Indemnifying Party in defense or prosecution thereof and shall furnish Party’s election to defend such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by third party claim on behalf of the Indemnifying Party in connection therewithIndemnified Party. If the Indemnifying Party elects to defend such third party claim, the Indemnified Party shall elect make available to assume the Indemnifying Party and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control as is reasonably required by the Indemnifying Party and shall otherwise cooperate with and assist the Indemnifying Party in the defense of such third party claim. Regardless of which party is defending such third party claim, the Indemnified Party shall not pay, settle or compromise such third party claim without the consent of the Indemnifying Party. If the Indemnifying Party elects to defend such third party claim, the Indemnified Party shall have the right to participate in the defense of such third party claim, at the Indemnified Party’s own expense. In the event, however, that the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and the Indemnified Party may present such counsel with a conflict of interest, then such Indemnified Party may employ its own separate counsel to represent or defend it in any such caseaction or proceeding and the Indemnifying Party will, but subject to the provisions of this Article 8, pay the reasonable fees and expenses disbursements of such counsel shall be at the expense of the Indemnified Partywhen due under such counsel’s customary billing practices. If the Indemnifying Party has assumed does not elect to defend such third party claim or does not defend such third party claim in good faith, the Indemnified Party shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnifying Party’s expense, to defend such third party claim; provided, however, that such Indemnified Party’s defense of or its participation in the defense of any such third party claim against shall not in any way diminish or lessen the indemnification obligations of the Indemnifying Party under this Article 8. If the Indemnifying Party subsequently reasonably determines that the Indemnified PartyParty is not defending such third party claim in good faith, the Indemnifying Party shall have the right, in addition to any other right or remedy it may have hereunder, to settle any elect to assume the defense of such third party claim for which indemnification has been sought and is available hereunder; provided thatand, to the extent that such settlement requires the Indemnified Party to takehas not defended such third party claim in good faith, and whether or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then not the Indemnifying Party shall not settle such claim without have subsequently assumed the prior written consent defense thereof, the indemnification obligations of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume under this Article 8 shall be reduced or eliminated to the defense of a third party claim and disputes the Indemnified Party’s right extent that such failure to indemnification, the Indemnified Party defend in good faith shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at materially adversely affected the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlementability to defend against, compromise settle or other legal proceeding. In no circumstance may the satisfy any liability, damage, loss, claim or demand for which such Indemnified Party compromise or settle a claim with a third party for which it seeks is otherwise entitled to indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedhereunder.

Defense of Third Party Claims. Upon receipt In the event any Claim is asserted against any Indemnified Person by a third party, the Indemnified Person shall, with reasonable promptness, notify the Indemnifying Party of a notice from such Claim. If the Indemnified Person does not so notify the Indemnifying Party within 30 days after becoming aware of such Claim, then the Indemnifying Party shall, if such delay materially prejudices the Indemnifying Party with respect to any claim the defense of such Claim, be relieved of liability hereunder in respect of such Claim only to the extent of the damage caused by such delay. Within fifteen (15) days of the receipt of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereundernotice of a Claim, the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party elects to defend such Claim. In any such proceeding, following receipt of notice properly given, the Indemnifying Party shall be entitled, at its sole discretion, to assume the entire defense of such Claim (with counsel selected by it which is reasonably satisfactory to the Indemnified Person or Persons), and the Indemnifying Party shall bear the entire cost of defending such Claim; provided that if, in the Indemnified Party's and the Indemnifying Party's reasonable judgment, a conflict of interest exists between the Indemnified Party and the Indemnifying Party with respect to such Claim, or if the Indemnifying Party elects not to defend such Claim, or if the Indemnifying Party fails to notify the Indemnified Party within the fifteen (15) day notice period that it elects to defend such Claim, such Indemnified Party shall be entitled to select counsel of its own choosing, in which event the Indemnifying Party shall be obligated to pay the reasonable fees and expenses of such counsel to the extent that the Indemnifying Party is finally determined to be obligated to indemnify the Indemnified Party under this Agreement. The Indemnifying Party shall not have the right to assume settle any such Claim without the defense written consent of the Indemnified Person or Persons, which consent shall not be unreasonably withheld; provided that the Indemnifying Party shall not enter into any such claimsettlement, and compromise or judgment without the prior written consent of the Indemnified Party if it would result in the imposition of any non-monetary liability or obligation on the Indemnified Party. In the event of the assumption of the defense by the Indemnifying Party, the Indemnifying Party shall cooperate not be liable for any further legal or other expenses subsequently incurred by the Indemnified Persons in connection with such defense unless otherwise agreed to the extent reasonably requested in writing by the Indemnifying Party or as herein provided; provided, however, the Indemnified Persons shall have the right to participate in defense or prosecution thereof such defense, at their own cost, and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by have the Indemnifying Party in connection obligation to cooperate therewith. If the Indemnifying Party shall elect refuses or fails at any time to assume defend the defense of such claimIndemnified Party against any Claim, the Indemnified Party shall have the right to employ its own counsel in any undertake the defense, and to compromise or settle such case, but Claim on behalf of and for the fees account and expenses of such counsel shall be at the expense risk of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnifying Party is finally determined to be obligated to indemnify the Indemnified Party under this Agreement with respect to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedClaim.

Defense of Third Party Claims. Upon receipt by the Indemnifying Each indemnified Party shall give notice as promptly as reasonably practicable to each indemnifying Party of a notice from the Indemnified any Third Party with Claim asserted against it in respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification indemnity may be sought hereunder, but failure to so notify an indemnifying Party shall not relieve such indemnifying Party from any liability hereunder to the Indemnifying extent it is not materially prejudiced as a result thereof and in such event, only to the extent of such prejudice. The indemnified Party shall have the right to assume undertake and control the defense defense, compromise and settlement of such claim, and the Indemnified . An indemnifying Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ participate at its own counsel expense in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Partysuch action; provided, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thathowever, that (a) counsel to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying indemnifying Party shall not settle such claim (except with the consent of the indemnified Party) also be counsel to the indemnified Party and (b) no indemnifying Party shall, without the prior written consent of the Indemnified Partyindemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any Third Party Claim (whether or not the indemnified Parties are actual or potential parties thereto) unless such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceedingconsent (i) includes an unconditional release of each indemnified Party from all liability arising out of such Third Party Claim and (ii) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified Party. In no circumstance may event shall the Indemnified Party compromise indemnifying Parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified Parties in connection with any one action or settle a claim with a third party for which it seeks indemnification from separate but similar or related actions in the Indemnifying Party without first obtaining the prior written consent same jurisdiction arising out of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned same general allegations or delayedcircumstances unless there is a conflict of interest among the indemnified Parties.

Defense of Third Party Claims. Upon receipt by (a) For purposes of this Article XIII, the Indemnifying term “indemnifying Party” when used in connection with particular Damages shall mean the Party of a notice from the Indemnified Party having an obligation to indemnify another Person or Persons with respect to any claim such Damages pursuant to this Article XIII, and the term “indemnified party” when used in connection with particular Damages shall mean the party having the right to be indemnified, with respect to such Damages by the other Party pursuant to this Article XIII. (b) Promptly after receipt by an indemnified party under Section 13.1 or Section 13.2 of a third party claim for Damages or notice of the commencement of any Proceeding against it (each a “Third Party Claim”), such indemnified party shall, if a claim is to be made against an indemnifying Party under such Section, give notice to the Indemnified indemnifying Party of the commencement of such Third Party Claim, together with a claim for indemnification pursuant to this Article XIII. The failure of any indemnified party to give a notice of a Third Party Claim as provided in this Section 13.6 shall not alter or relieve the indemnifying Party of its obligations under this Article XIII except to the extent, but only to the extent, such failure materially prejudices the indemnifying Party. (c) If any Third Party Claim is brought against an indemnified party and the indemnified party gives a notice to the indemnifying Party of the commencement of such Third Party Claim, the indemnifying Party shall have fifteen (15) days from its receipt of the notice to notify the indemnified party whether it admits or denies its liability to defend the indemnified party against such Third Party Claim at the sole cost and expense of the indemnifying Party. The indemnified party is authorized, prior to and during such fifteen (15) day period, to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the indemnifying Party and that is not prejudicial to the indemnifying Party, for which and any costs, fees or expenses incurred by the Indemnified indemnified party in furtherance of investigating, review and responding to such Third Party seeks Claim shall be Damages subject to indemnification hereunder. (d) If the indemnifying Party admits its liability to defend the indemnified party against such Third Party Claim, it shall have the right and obligation to diligently defend, at its sole cost and expense, the Indemnifying indemnified party against such Third Party Claim with counsel reasonably satisfactory to the indemnified party, and, after notice from the indemnifying Party to the indemnified party of the indemnifying Party’s election to assume the defense of such Third Party Claim, the indemnifying Party shall not, as long as it diligently conducts such defense, be liable to the indemnified party under this Article XIII for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case subsequently incurred by the indemnified party in connection with the defense of such claim or Proceeding (provided, however, that the indemnifying Party shall not have the right to assume the defense of such claim, and Third Party Claim if (i) the Indemnified indemnifying Party shall cooperate fails to provide reasonable assurance to the extent reasonably requested by indemnified party of its financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim, (ii) the Indemnifying Third Party in defense Claim primarily seeks injunctive or prosecution thereof and shall furnish such recordsother non-monetary or equitable relief against the indemnified party or (iii) the Third Party Claim relates to any criminal proceeding, information and testimony and attend all such conferencesindictment, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithallegation or investigation). If the Indemnifying indemnifying Party assumes the defense of a Third Party Claim, no compromise or settlement of such Third Party Claim may be effected by the indemnifying Party without the indemnified party’s prior written consent unless (A) there is no finding or admission of any violation of Applicable Laws or any violation of the rights of any Person and no effect on any other third party claims that may be made against the indemnified party, (B) there is a full general release in customary form of all the claims in connection with the Third Party Claim against the indemnified party from all parties to the Third Party Claim, and (C) the sole relief provided is monetary damages that are paid in full by the indemnifying Party (i.e., neither the indemnified party nor any of its Affiliates are required to perform any covenant or refrain from engaging in any activity), and (D) the indemnified party shall elect have no liability with respect to any compromise or settlement of such Third Party Claim effected without its consent. (e) If the indemnifying Party does not admit its liability or admits its liability to defend the indemnified party against a Third Party Claim, but is either unable to assume the defense of such claimThird Party Claim as set forth above or fails to diligently prosecute, indemnify against or settle the Indemnified Third Party Claim, then the indemnified party shall have the right to employ its own counsel in any such case, but defend against the fees and expenses of such counsel shall be Third Party Claim at the sole cost and expense of the Indemnified indemnifying Party, with counsel of the indemnified party’s choosing, subject to the right of the indemnifying Party to admit its liability and assume the defense of the Third Party Claim at any time prior to settlement or final determination thereof (unless the indemnifying Party is unable to assume the defense of such Third Party Claim as set forth above). If the Indemnifying indemnifying Party has assumed not yet admitted its liability to defend the defense indemnified party against a Third Party Claim, the indemnified party shall send written notice to the indemnifying Party of any claim against proposed settlement and the Indemnified Party, the Indemnifying indemnifying Party shall have the right option for ten (10) days following receipt of such notice to settle any claim for which indemnification has been sought (i) admit in writing its liability to indemnify the indemnified party from and is available hereunder; provided thatagainst the liability and either consent to or reject such proposed settlement, to the extent that such settlement requires the Indemnified Party to takein its reasonable judgment, or prohibits (ii) deny liability. Any failure to respond to such notice by the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party indemnified party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not be deemed to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedan election under subsection (ii) above.

Defense of Third Party Claims. Upon receipt by the Except as otherwise expressly provided herein, Indemnifying Party of a notice from the shall be entitled at its cost and expense to contest and defend by all appropriate legal proceedings in connection with any Third Party Action with respect to which it is called upon to indemnify Indemnified Party under the provisions of this Agreement; provided, however, that with respect to any claim Claim arising from the assertion of any Third Party Action, notice of the intention so to contest shall be delivered by Indemnifying Party to Indemnified Party within twenty (20) days from the date of receipt by Indemnifying Party of notice from Indemnified of the assertion of the Third Party Action. Any such contest with respect to a third party against Third Party Action may be conducted in the name and on behalf of Indemnifying Party or the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderas appropriate. Except as otherwise expressly provided herein, the such contest shall be conducted by attorneys employed by Indemnifying Party shall have the right to assume the defense of such claimParty, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the but Indemnified Party shall have the right to employ participate in such proceedings and to be represented by attorneys of its own counsel in any such case, but the fees choosing at its cost and expenses of such counsel shall be at the expense of the Indemnified Partyexpense. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Partyafter notice as provided for herein, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume elect to contest any Third Party Action as provided in this Section 6.5, Indemnifying Party shall be bound by the defense of a third party claim result obtained with respect thereto by Indemnified Party and disputes the Indemnified Party’s right to indemnification, the Indemnified Party may (but shall have no obligation to) contest any such Third Party Action or settle or admit liability with respect thereto, all for the right account of Indemnifying Party. At any time after the commencement of defense of any such Third Party Action, Indemnifying Party may request Indemnified Party to assume control agree in writing to the abandonment of such contest or the payment or compromise by Indemnifying Party of the defense asserted Third Party Action whereupon such action shall be taken unless Indemnified Party so determines that the contest should be continued, and so notifies Indemnifying Party in writing within fifteen (15) days of such claim through counsel of its choice, the reasonable costs of which shall be at the request from Indemnifying Party’s expense in . In the event that Indemnified Party determines that the contest should be continued, Indemnifying Party shall be liable with respect to such Third Party Action only to the extent of the lesser of (i) the amount which the third party taking the Third Party Action had agreed to accept in payment or compromise as of the time Indemnifying Party made its request therefor to Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party (ii) such amount for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent may be liable with respect to such Claim by reason of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedprovisions hereof.

Defense of Third Party Claims. Upon receipt If any claim set forth in the Notice of Claim given by an Indemnitee pursuant to Section 8.5 hereof is a claim asserted by a third party, the Indemnitor shall have thirty (30) days after the date that the Notice of Claim is given by the Indemnifying Party Indemnitee to notify the Indemnitee in writing of a notice from the Indemnified Party with respect Indemnitor's election to any claim of a defend such third party against claim on behalf of the Indemnified Party, for which Indemnitee. If the Indemnified Party seeks indemnification hereunderIndemnitor elects to defend such third party claim, the Indemnifying Party Indemnitee shall make available to the Indemnitor and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnitee's possession or under the Indemnitee's control as is reasonably required by the Indemnitor and shall otherwise cooperate with and assist the Indemnitor in the defense of such third party claim, and so long as the Indemnitor is defending such third party claim in good faith, the Indemnitee shall not pay, settle or compromise such third party claim. If the Indemnitor elects to defend such third party claim, the Indemnitee shall have the right to participate in the defense of such third party claim, at the Indemnitee's own expense. In the event, however, that the Indemnitee reasonably determines that representation by counsel to the Indemnitor of both the Indemnitor and the Indemnitee may present such counsel with a conflict of interest, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and the Indemnitor will, subject to the provisions of this Article 8, pay the reasonable fees and disbursements of such counsel. If the Indemnitor does not elect to defend such third party claim or does not defend such third party claim in good faith, the Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnitor's expense, to defend such third party claim; provided, however, that such Indemnitee's defense of or its participation in the defense of any such third party claim shall not in any way diminish or lessen the indemnification obligations of the Indemnitor under this Article 8. If the Indemnitor shall assume the defense of such a third party claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party it shall not settle such claim without the prior written consent of the Indemnified Party, Indemnitee (a) unless such consent not settlement includes as an unconditional term thereof the giving by the claimant of a release of the Indemnitee from all Liability with respect to such claim or (b) if such settlement involves the imposition of equitable remedies or the imposition of any obligations on such Indemnitee other than financial obligations for which such Indemnitee will be unreasonably withheld, conditioned or delayedindemnified hereunder. If the Indemnifying Party does not assume the defense of Indemnitee is defending a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of it will not settle such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying PartyIndemnitor, such consent which will not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt by If the Indemnifying Party assumes the defense of a notice from the Indemnified Third Party with respect Claim pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection 9.3(a), the Indemnifying Party will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall, and shall cause its Affiliates to, cooperate with the Indemnifying Party and its counsel, including making available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnitee’s possession or under the Indemnitee’s control relating thereto as is reasonably required by the Indemnifying Party. The Indemnitee will have the right to assume the defense of participate in such claimdefense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseincluding appointing separate counsel, but the fees and expenses costs of such counsel participation shall be at borne solely by the expense Indemnitee. The Indemnifying Party will, in consultation with the Indemnitee, make all decisions and determine all actions to be taken with respect to the defense and settlement of the Indemnified Party. If the Indemnifying Third Party has assumed the defense of any claim against the Indemnified PartyClaim; provided, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thathowever, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle pay, compromise, settle, or otherwise dispose of such claim Third Party Claim without the prior written consent of the Indemnified Party, such Indemnitee (which consent shall not to be unreasonably withheld, conditioned or delayed. If ) unless such settlement involves only the Indemnifying Party does not assume the defense payment of a third party claim and disputes the Indemnified Party’s right to indemnificationmoney, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense payment is made in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from full solely by the Indemnifying Party without first obtaining recourse to the prior written Indemnitee, and such settlement does not impose any obligations or restrictions on the Indemnitee of any nature other than an obligation to pay monetary damages indemnified hereunder. In no event will the Indemnifying Party have authority to agree, without the consent of the Indemnitee, to any relief binding on the Indemnitee other than the payment of money damages by the Indemnifying Party, such consent not Party without recourse to be unreasonably withheld, conditioned or delayedthe Indemnitee.

Defense of Third Party Claims. Upon receipt If a Third Party asserts that a Patent or other Intellectual Property Right (other than trademarks, which shall be governed by the Indemnifying applicable Trademark License Agreement) owned or controlled by the Third Party is infringed by the Exploitation of Rifaximin Products as contemplated by this Agreement, then the Party first obtaining knowledge of such a claim shall immediately provide the other Party notice from of such claim along with the Indemnified related facts in reasonable detail. Each Party shall be responsible for defending itself in any litigation in which it is a named defendant. If only one Party is a named defendant in any litigation commenced by a Third Party and the other Party is not a named defendant, the right to raise counterclaims against the plaintiff with regard to Patents owned by the other Party shall be governed by Section 11.7.1, provided that the Party that is not a named defendant shall not object if the Party which is a named defendant files an impleader action to join the other Party into the litigation. If both Alfa and Salix are named as joint defendants, Alfa and Salix shall cooperate with each other to develop a defense strategy for the Salix Territory and the Alfa Territory, including the decision to assert possible counterclaims, provided, however, that with respect to any claim Alfa Licensed Patent that is covered by Section 11.7, if the Parties, acting in good faith, cannot reach agreement with respect resolution, to the determination of whether to assert a third party against the Indemnified Partycounterclaim with regard to rights arising under any such Patent, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party then Salix shall have the right to assume determine whether or not to assert such counterclaim. The Parties shall confer with each other to decide which Party shall control the defense of such claimlitigation in which Salix and Alfa are both named as defendants. In respect of any defense of an action pursuant to this Section 11.6.1, and the Indemnified defending Party shall cooperate to solicit and reasonably consider the extent reasonably requested by the Indemnifying Party other Party’s proposals in defense or prosecution thereof and shall furnish respect of litigation strategy. In any such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimaction, the Indemnified non-controlling Party shall have the right to employ right, at its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatexpense, to the extent that be represented in such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through by counsel of its own choice. Except as otherwise contemplated above in this Section 11.6.1, the reasonable costs Party with primary responsibility for defense under this Section 11.6.1 shall bear the cost of which any such action and shall be at entitled to 100% of the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlementrecovery, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification if any, from the Indemnifying Third Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedarising from any counter-claims.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against any party entitled to the Indemnified Partybenefit of indemnity hereunder with respect thereto, for which written notice thereof shall be given to the Indemnified Party seeks indemnifying party as promptly as practicable (and in any event within 15 calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the Indemnifying Party extent that the indemnifying party has been materially damaged by such failure as described in the provision to Section 7.2(c)). After such notice, if (1) the indemnifying party shall have acknowledge in writing to the right indemnified party that the indemnifying party is obligated under the terms of its indemnity hereunder to fully indemnify the indemnified party in connection with such lawsuit or action, and (2) such third party claim is solely for monetary damages, and is not brought by a customer, Governmental Entity or a supplier listed on Schedule 3.20, then the indemnifying party shall be entitled, if it elects to do so, at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage legal counsel of its own choice, but, in any event, reasonably acceptable to the indemnified party, to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing. The indemnifying party shall not, without the written consent of the indemnified party, which shall not be unreasonably withheld, conditioned or delayed, (x) settle or compromise any Claim or consent to the entry of any judgment which does not include an unconditional written release by the claimant or plaintiff of the indemnified party from all liability in respect of such Claim or (y) settle or compromise any Claim if the settlement imposes equitable remedies or obligations on the indemnified party other than financial obligations for which such indemnified party will be fully indemnified hereunder. No Claim which is being defended in good faith by the indemnifying party in accordance with the terms of this Agreement shall be settled or compromised by the indemnified party without the written consent of the indemnifying party, which consent shall not be unreasonably withheld. If the indemnifying party fails to assume the defense of such claimlawsuit or action within 30 calendar days after receipt of the Claim Notice or is not permitted to assume such defense pursuant to this Section 7.2(d), and the Indemnified Party shall cooperate indemnified party against which such lawsuit or action has been asserted will (upon delivering notice to such effect to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall indemnifying party) have the right to employ its own counsel in any such caseundertake, but at the fees indemnifying party’s cost and expenses expense, the defense, compromise or settlement of such counsel shall be at lawsuit or action on behalf of and for the expense account and risk of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Partyindemnifying party; provided, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thathowever, to the extent that such settlement requires the Indemnified Party to take, lawsuit or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim be compromised or settled without the prior written consent of the Indemnified Partyindemnifying party, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third indemnified party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of settles or compromises such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise lawsuit or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party action without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, the indemnifying party will bear no liability hereunder for or with respect to such consent not to be lawsuit or action unless the indemnifying party unreasonably withheld, conditioned or delayeddelayed its consent. In the event either party assumes the defense of a particular lawsuit or action in the manner contemplated above, the party assuming such defense will keep the other party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 7.2 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Third Party Claims. Upon receipt by An Indemnified Party will give prompt written notice to the Indemnifying Party of a notice from the Indemnified Party with respect to commencement or assertion of any action, proceeding, demand, or claim of by a third party against the Indemnified Party(collectively, for a “Third Party Action”) in respect of which the such Indemnified Party seeks will seek indemnification hereunder, . Any failure so to notify the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by will not relieve the Indemnifying Party in defense from any liability that it, he, or prosecution thereof she may have to such Indemnified Party under this Article IX unless the failure to give such notice materially and shall furnish adversely prejudices such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party. The Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall will have the right to assume control of the defense of, settle, or otherwise dispose of such claim through Third Party Action on such terms as it deems appropriate; provided, that: (a) The Indemnified Party will be entitled, at its own expense, to participate in the defense of such Third Party Action (provided, that the Indemnifying Party will pay the attorneys’ fees of the Indemnified Party if (i) the employment of separate counsel will have been authorized in writing by the Indemnifying Party in connection with the defense of its choice, such Third Party Action; (ii) the reasonable costs Indemnifying Party will not have employed counsel reasonably satisfactory to the Indemnified Party to have charge of which shall be at such Third Party Action; (iii) the Indemnified Party will have reasonably concluded that there are defenses available to such Indemnified Party that are different from or in addition to those available to the Indemnifying Party’s expense in , and the event that inability of the Indemnified Party to assert such defenses would be significantly detrimental to the defense of the Indemnified Party or (iv) the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may counsel will have advised the Indemnified Party compromise or settle a claim in writing, with a third party for which copy delivered to Indemnifying Party, that there is a conflict of interest that could make it seeks indemnification from the inappropriate under applicable standards of professional conduct to have common counsel); (b) The Indemnifying Party will obtain the prior written approval (which shall not be unreasonably withheld) of the Indemnified Party before entering into or making any settlement, compromise, admission, or acknowledgment of the validity of such Third Party Action or any liability in respect thereof or entailing any relief that is injunctive, equitable or non-monetary in nature, and the Indemnified Party will not consent to the entry of any judgment or enter into any settlement respecting any Third Party Action without first obtaining the prior written consent of the Indemnifying Party, such consent Party (which shall not to be unreasonably withheld); (c) The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability; (d) The Indemnifying Party will not be entitled to control (but will be entitled to participate at its own expense in the defense of), conditioned and the Indemnified Party will be entitled to have sole control over, the defense or delayedsettlement, compromise, admission, or acknowledgment of any Third Party Action (i) relating to any Tax to be collected from a Indemnified Party or an Affiliate of a Indemnified Party; (ii) as to which the Indemnifying Party fails to assume the defense within a reasonable length of time (and in any event within 30 days); or (iii) to the extent the Third Party Action seeks an order, injunction, or other equitable relief against the Indemnified Party which, if successful, would materially adversely affect the business, operations, assets, or financial condition of the Indemnified Party; and (e) The Parties will extend reasonable cooperation in connection with the defense of any Third Party Action pursuant to this Article IX and, in connection therewith, will furnish such records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be reasonably requested.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party In connection with respect to any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderparty, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the indemnified party may (but shall not be obligated to), upon written notice to the indemnified party, assume the defense of any such claim or legal proceeding if (a) the Indemnifying Party acknowledges to the indemnified party in writing, within 15 days after receipt of notice from the indemnified party, its obligations to indemnify the indemnified party with respect to all elements of such claim, (b) the Indemnifying Party provides the indemnified party with evidence reasonably acceptable to the indemnified party that the Indemnifying Party will have the right financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not in the good faith judgment of the indemnified party, likely to establish a pattern or practice adverse to the continuing business interests of the indemnified party. The indemnified party will be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, that if there are one or more legal defenses available to the indemnified party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to defend diligently the claim after receiving notice from the indemnified party that it believes the Indemnifying Party has failed to do so, the indemnified party may assume the defense of such claim; provided, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such recordsfurther, information and testimony and attend all such conferenceshowever, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel that in any such case, but circumstances in which the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party indemnified party has assumed the defense of any claim against the Indemnified Partya claim, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall indemnified party may not settle such claim without the prior written consent of the Indemnified Indemnifying Party, such which consent may not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume indemnified party assumes the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationclaim, the Indemnified Indemnifying Party shall have reimburse the right indemnified party on a monthly basis for the reasonable fees and expenses of counsel retained by the indemnified party, which counsel shall be reasonably satisfactory to assume control of the Indemnifying Party, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim through claim, with its counsel and at its own expense. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of its choiceeach other in order to insure the proper and adequate defense of any action, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of suit or proceeding, whether or not subject to indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedhereunder.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against any party entitled to the Indemnified Partybenefit of indemnity hereunder, for which written notice thereof shall be given to the Indemnified Party seeks indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, except to the extent that the indemnifying party demonstrates actual damage caused by such settlement requires failure. After such notice, if the Indemnified Party indemnifying party shall acknowledge in writing to take, the indemnified party that the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Partyaction, then the Indemnifying Party indemnifying party shall not be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim without claim, which compromise or settlement shall be made only with the prior written consent of the Indemnified Partyindemnified party, such consent not to be unreasonably withheld (unless such compromise or settlement (a) solely requires payment of monetary damages by the indemnifying party and (b) does not impose obligations or restrictions on or require the admission of liability by the indemnified party or its business, in which case approval of the indemnified party shall not be required); provided, however, if the resolution of any such Claim is reasonably expected to impose obligations or restrictions on the indemnified party or its business, then, notwithstanding the foregoing, the indemnified party shall be entitled to control such resolution, including, without limitation, to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim (which compromise or settlement shall be subject to the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume the defense of a third indemnifying party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right fails to assume control of the defense of such claim through counsel within fifteen (15) calendar days after receipt of its choicethe Claim Notice, the reasonable costs of indemnified party against which shall be such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the Indemnifying Party’s expense in indemnifying party's cost and expense, the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceeding. In no circumstance may settlement of such claim on behalf of and for the Indemnified Party compromise account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or settle a claim with a third party for which it seeks indemnification from settled without the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such which consent shall not to be unreasonably withheld. In the event the indemnified party assumes the defense of the claim, conditioned the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or delayedsettlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 10.3 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment. The right to indemnification, payment of Damages or other remedy based on any representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable or being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedies based on such representations, warranties, covenants and obligations.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, Party for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, . The Indemnifying Parties and the Indemnified Party Parties shall cooperate to the extent reasonably requested by the Indemnifying Party other in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party other party in connection therewith. To elect to conduct such defense, (i) the Indemnifying Party must give written notice of such election to the Indemnified Party within thirty (30) days (or within the shorter period, if any, during which a defense must be commenced for the preservation of rights) after the Indemnified Party gives the corresponding initial claim notice to the Indemnifying Party (otherwise, such right to conduct such defense will be deemed waived), or (ii) the third-party claim must involve only money damages and not seek an injunction or other equitable relief or relate to a criminal proceeding. If the Indemnifying Party shall elect validly makes such election, it will nonetheless lose such right to assume conduct such defense if it fails to continue to actively and diligently conduct such defense. Also, if the defense of Indemnifying Party validly makes such claimelection, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party, and will have the right to receive copies of all notices, pleadings or other similar submissions regarding such defense. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party will keep the Indemnified Party reasonably informed of all matters material to such defense and third party claim at all stages thereof, and shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided provided, however, that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent Party (which shall not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationclaim, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choicechoice in any manner that the Indemnified Party reasonably deems appropriate, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s Agreement for Exchange of Stock right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks claims a right to indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by If the Indemnifying Party assumes the defense of a notice from the Indemnified Third Party with respect Claim pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection 10.4(b), the Indemnifying Party will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall, and shall cause its Affiliates to, cooperate with the Indemnifying Party and its counsel, including making available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnitee’s possession or under the Indemnitee’s control relating thereto as is reasonably required by the Indemnifying Party. The Indemnitee will have the right to assume the defense of participate in such claimdefense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseincluding appointing separate counsel, but the fees and expenses costs of such counsel participation shall be at borne solely by the expense of the Indemnified PartyIndemnitee. If the Indemnifying Party has assumed the defense of any claim against the Indemnified PartySubject to Section 10.4(a), the Indemnifying Party shall have will, in consultation with the right Indemnitee, make all decisions and determine all actions to settle any claim for which indemnification has been sought and is available hereunder; provided that, be taken with respect to the extent defense and settlement of the Third Party Claim; provided, however, that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle pay, compromise, settle, or otherwise dispose of such claim Third Party Claim without the prior written consent of the Indemnified PartyIndemnitee, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party , provided that it will not be deemed to be unreasonable for an Indemnitee to withhold its consent if (A) such payment, compromise, settlement or disposition does not assume involve solely the defense payment of a third party claim and disputes money, (B) such payment, compromise, settlement or disposition does not involve solely the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control payment of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from money by the Indemnifying Party without first obtaining recourse to the prior written Indemnitee, (C) such payment, compromise, settlement or disposition involves a finding or admission of violation of any Law, Order or Permit or rights of any Person by the Indemnitee or its Affiliates or (D) such payment, compromise, settlement or disposition does not contain an unconditional release of the Indemnitee from the subject matter of such payment, compromise, settlement or disposition. In no event will the Indemnifying Party have authority to agree, without the consent of the Indemnitee, to any relief binding on the Indemnitee other than the payment of money damages by the Indemnifying Party, such consent not Party without recourse to be unreasonably withheld, conditioned or delayedthe Indemnitee.

Defense of Third Party Claims. Upon receipt by In the Indemnifying case of any Third-Party of Claim that may give rise to a notice from the Indemnified Party with respect claim for indemnification pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderthis Article 10, the Indemnifying Party shall have the right to assume defend and to direct the defense of against any such claim, in its name or in the name of the Indemnified Party, as the case may be, at the expense of the Indemnifying Party, and with competent counsel experienced in the handling of such claims selected by the Indemnifying Party, unless (i) such claim seeks remedies other than monetary damages, and such remedies could be reasonably expected to have a material adverse effect on such Indemnified Party or (ii) if there is a conflict of interest which would prevent counsel for the Indemnifying Party from also representing the Indemnified Party. Notwithstanding anything in this Agreement to the contrary, the Indemnified Party shall cooperate to with the extent reasonably requested by Indemnifying Party, and keep the Indemnifying Party fully informed, in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the claim or demand. The Indemnified Party shall have the right to employ participate in the defense of any claim or demand with counsel employed at its own expense; provided, however, (y) except in the case of any claim or demand described in clause (i) or (ii) above, the Indemnifying Party shall control the defense and (z) in the case of any claim or demand described in clause (i) or (ii) above or as to which the Indemnifying Party shall not in fact have employed competent counsel experienced in any the handling of such caseclaims to assume the defense against such claim or demand, but the reasonable fees and expenses disbursements of such counsel shall be at the expense of the Indemnified Indemnifying Party. If Whether or not the Indemnifying Party has shall have assumed the defense of such claim or demand, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge such claim or demand without the Indemnifying Party's prior written consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, an Indemnifying Party shall cease to be entitled to have the right to defend and direct the defense of any claim against the Indemnified Party, the Indemnifying Party if it (or its counsel) shall have the right cease to settle any claim for which indemnification has been sought diligently and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle vigorously defends such claim without with competent counsel experienced in the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense handling of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedclaim.

Defense of Third Party Claims. Upon receipt If the claim or demand set forth in the Notice of Claim given by Indemnitee pursuant to Section 8.3 hereof is a claim or demand asserted by a third party, Indemnitor shall have fifteen (15) business days after the date on which such Notice of Claim is given by the Indemnifying Party Indemnitee to notify Indemnitee in writing of a notice from the Indemnified Party with respect Indemnitor's election to any claim of a defend such third party against claim or demand on behalf of Indemnitee. If Indemnitor elects to defend such third party claim or demand, Indemnitee shall make available to Indemnitor and its agents and representatives all witnesses, pertinent records, materials and information in the Indemnified PartyIndemnitee's possession or under the Indemnitee's control as is reasonably required by Indemnitor and shall otherwise cooperate with and assist Indemnitor in the defense of such third party claim in good faith. Indemnitee shall not pay, for which the Indemnified Party seeks indemnification hereundersettle or compromise such third party claim or demand. If Indemnitor elects to defend such third party claim or demand, the Indemnifying Party Indemnitee shall have the right to assume participate in the defense of such claimthird party claim or demand, and at Indemnitee's own expense. In the Indemnified Party shall cooperate event, however, that the named parties to the extent action or proceeding include both Indemnitor and Indemnitee and Indemnitee reasonably requested determines that representation by counsel to Indemnitor of both Indemnitor and Indemnitee may present such counsel with a conflict of interest, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and Indemnitor will pay the Indemnifying Party in defense or prosecution thereof reasonable fees and shall furnish disbursements of such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithcounsel. If the Indemnifying Party shall Indemnitor does not elect to assume the defense of defend such claimthird party claim or demand or does not defend such third party claim or demand in good faith, the Indemnified Party Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at Indemnitor's expense, to employ its own counsel defend such third party claim or demand; provided, however, that (a) Indemnitor shall not have any obligation to participate in the defense of, or defend, any such case, but the fees third party claim or demand; and expenses (b) Indemnitee's defense of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed or its participation in the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes or demand shall not in any way diminish or lessen the Indemnified Party’s right to indemnification, obligations of Indemnitor under the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right agreements of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedset forth in this Article 8.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third The indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party ----------------------------- shall have the right to assume conduct and control, through counsel of its own choosing, reasonably acceptable to the indemnified party, any third party litigation or other proceeding or other claim, but the indemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that if the indemnifying party shall fail to defend any such -------- ------- litigation or other proceeding or other claim, then the indemnified party may defend, through counsel of its own choosing, such litigation or other proceeding or other claim, and (so long as it gives the Indemnified Party shall cooperate to indemnifying party at least thirty (30) days' notice of the extent reasonably requested by terms of the Indemnifying Party in defense or prosecution proposed settlement thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by permits the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect indemnifying party to assume then undertake the defense thereof) settle such litigation or other proceeding or other claim, and to recover the amount of such claim, settlement or of any judgment and the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees reasonable costs and expenses of such counsel defense. The indemnifying party shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to not compromise or settle any claim for which indemnification has been sought and is available hereunder; provided thatsuch litigation or other proceeding or other claim, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Partyindemnified party, such which consent shall not to unreasonably be unreasonably withheld, conditioned delayed or delayedconditioned, if the terms and conditions of such compromise or settlement proposed by the indemnifying party and agreed to in writing by the claimant in such litigation or other proceeding or other claim, (a) include a full release of the indemnified party from the litigation or other proceeding or other claim which is the subject of the Settlement Proposal, and (b) do not include any term or condition which would restrict in any material manner the continued ownership or operations of the business of the indemnified party in substantially the manner then being owned or operated by the indemnified party (or any successor or assign). If No matter whether an indemnifying party defends or prosecutes any third party litigation or other proceeding or other claim, the Indemnifying Party does not assume indemnified and indemnifying parties shall cooperate in the defense of a or prosecution thereof. Such cooperation shall include access during normal business hours afforded to the indemnifying party to records and information which are reasonably relevant to such third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise litigation or other legal proceeding. In no circumstance may proceeding or other claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the Indemnified Party compromise or settle a claim with a third indemnifying party shall reimburse the indemnified party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedall its reasonable out-of-pocket expenses in connection therewith.

Defense of Third Party Claims. (i) Upon acknowledging liability to indemnify the Indemnitee for a Third Party Claim, the Indemnifying Party may assume the defense of a Third Party Claim pursuant to Section 8.3(a) upon giving notice to the Indemnitee. If the Indemnifying Party assumes the defense of a Third Party Claim pursuant to Section 8.3(a), the Indemnifying Party will appoint counsel reasonably satisfactory to the Indemnitee for the defense of such Third Party Claim, will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee will cooperate in good faith with the Indemnifying Party and its counsel, including by permitting reasonable access to books, records, and personnel, in connection with the defense of any Third Party Claim (provided, that any out-of-pocket costs incurred by the Indemnitee in providing such cooperation will be paid by the Indemnifying Party). The Indemnitee will have the right to participate in such defense at the Indemnitee’s expense. The Indemnifying Party will have full authority, in consultation with the Indemnitee, to make all decisions and determine all actions to be taken with respect to the defense and settlement of the Third Party Claim, including the right to pay, compromise, settle, or otherwise dispose of such Third Party Claim at the Indemnifying Party’s expense; provided, that any such settlement will be subject to the prior consent of the Indemnitee, which will not be unreasonably withheld or delayed. If a firm offer is made to settle a Third Party Claim, which the Indemnifying Party desires to accept, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 10 days after its receipt of such notice, and such firm offer involves only the payment of money, the maximum liability of the Indemnifying Party with respect to such Third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of such notice for which the Indemnifying Party is otherwise liable. In no event will the Indemnifying Party have authority to agree to any relief binding on the Indemnitee other than the payment of money damages by the Indemnifying Party unless agreed to by the Indemnitee. (ii) Notwithstanding the provisions of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection 8.3(b)(i), the Indemnifying Party Indemnitee shall have the right to assume engage counsel and to control the defense of such claim, and the Indemnified a Third-Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then Claim if the Indemnifying Party shall not settle such claim without have notified the prior written consent Indemnitee of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense its appointment of a third party claim counsel and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through a Third-Party Claim pursuant to Section 8.3(b)(i). (iii) Notwithstanding the engagement of counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of by the Indemnifying Party, the Indemnitee shall have the right, at its own expense, to engage counsel to participate jointly with the Indemnifying Party in, and to control jointly with the Indemnifying Party, the defense of a Third-Party Claim if (x) the Third-Party Claim involves remedies other than monetary damages and such consent not remedies, in the Indemnitee’s reasonable judgment, could have an effect on the conduct of the Business, or (y) the Third-Party Claim relates to acts, omissions, conditions, events or other matters occurring after the Closing Date as well as to acts, omissions, conditions, events or other matters occurring prior to the Closing Date. (iv) If the Indemnitee chooses to exercise its right to appoint counsel under this Section 8.3(b), the Indemnitee shall deliver notice thereof to the Indemnifying Party setting forth in reasonable detail why it believes that it has such right and the name of the counsel it proposes to employ. The Indemnitee may deliver such notice at any time that the conditions to the exercise of such right appear to be unreasonably withheldfulfilled, conditioned or delayedit being recognized that in the course of litigation, the scope of litigation and the amount at stake may change. The Indemnitee shall thereupon have the right to appoint such counsel.

Defense of Third Party Claims. Upon receipt If a claim for Damages (a “Claim”) is to be made by a party entitled to indemnification hereunder against the Indemnifying Party indemnifying party, the party claiming such indemnification shall, subject to this Article VII, give written notice (a “Claim Notice”) to the indemnifying party as soon as practicable after the party entitled to indemnification becomes aware of a any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Article VII, provided that the failure of any indemnified party to give prompt notice from hereunder shall not affect rights to indemnification hereunder except to the Indemnified Party with respect to extent that the indemnifying party is damaged by such failure or the Damages that are the subject of the Claim are exacerbated. If any claim of lawsuit or enforcement action is filed by a third party against any party entitled to the Indemnified Party, for which the Indemnified Party seeks indemnification benefit of indemnity hereunder, the Indemnifying Party written notice thereof shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate be given to the extent reasonably requested by indemnifying party as promptly as practicable, provided that the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense failure of any claim against the Indemnified Party, the Indemnifying Party indemnified party to give prompt notice hereunder shall have the right not affect rights to settle any claim for which indemnification has been sought and is available hereunder; provided that, hereunder except to the extent that the indemnifying party is damaged by such settlement requires failure or the Indemnified Party Damages that are the subject of the Claim are exacerbated. After such notice, if the indemnifying party shall acknowledge in writing to take, the indemnified party that the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Partyaction, then the Indemnifying Party indemnifying party shall not be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim without claim, which compromise or settlement shall be made only with the prior written consent of the Indemnified Partyindemnified party, such consent not to be unreasonably withheld; provided, conditioned however, if the resolution of any such Claim is reasonably expected to have an adverse effect on the indemnified party’s business operations, then, notwithstanding the foregoing, the indemnified party shall be entitled to control such resolution, including, without limitation, to take control of the defense and investigation of such lawsuit or delayedaction, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party’s cost, risk and expense, and to compromise or settle such Claim. If the Indemnifying Party does not assume the defense of a third indemnifying party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right fails to assume control of the defense of such claim through counsel within thirty (30) calendar days after receipt of its choicethe Claim Notice, the reasonable costs of indemnified party against which shall be such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the Indemnifying Partyindemnifying party’s expense in cost and expense, the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceeding. In no circumstance may settlement of such claim on behalf of and for the Indemnified Party compromise account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or settle a claim with a third party for which it seeks indemnification from settled without the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such which consent shall not to be unreasonably withheld. In the event the indemnified party assumes the defense of the claim, conditioned the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or delayedsettlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Article VII and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment. The right to indemnification, payment of Damages or other remedy based on any representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable or being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedies based on such representations, warranties, covenants and obligations.

Defense of Third Party Claims. Upon receipt (A) In the event of the assertion or commencement by any Person of any claim or Legal Proceeding with respect to which any of the Indemnitees may be entitled to indemnification pursuant to this Section 6, the respective Indemnitee shall promptly give the Indemnifying Party written notice of such claim or Legal Proceeding (a notice from "CLAIM"); PROVIDED, HOWEVER, that any failure on the Indemnified part of any of the Indemnitees to so notify the Indemnifying Party with respect shall not limit any of the Indemnitees' rights to any claim indemnification under this Section 6 (except to the extent such failure materially prejudices the defense of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereundersuch Legal Proceeding). (B) Within ten days of delivery of such written notice, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate may elect (by written notice delivered to the extent reasonably requested by the Indemnifying Party in defense Indemnitee) to take all necessary steps properly to contest any Claim involving third parties or prosecution thereof and shall furnish to prosecute such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithClaim to conclusion or settlement. If the Indemnifying Party shall elect to assume makes the defense of such claimforegoing election, the Indemnified Party shall an Indemnitee will have the right to employ participate at its own counsel expense in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Partyall proceedings. If the Indemnifying Party has assumed does not make such election within such period or fails to diligently contest such Claim after such election, then the Indemnitee shall be free to handle the prosecution or defense of any claim against such Claim, and will take all necessary steps to contest the Indemnified Party, Claim involving third parties or to prosecute such Claim to conclusion or settlement. Neither the Indemnifying Party shall have the right to nor any Indemnitee will compromise or settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim Claim without the prior written consent of the Indemnified Partyother party, such consent not to be unreasonably withheld; PROVIDED, conditioned or delayed. If HOWEVER, that, upon five-day written notice to the Indemnified Parties, the Indemnifying Party may settle any such Claim if (i) such settlement is without monetary cost to the Indemnified Parties, (ii) such settlement fully and finally resolves all claims arising in such Claim as against the Indemnified Parties with prejudice, and (iii) such settlement does not assume result and does not give rise to any future obligation or other Liability (whether to perform any covenant or refrain from engaging in any activity or otherwise) on the defense part of a third party claim and disputes any of the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise Parties or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedtheir respective Affiliates.

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third–party claim or any threatened third–party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third–party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third–party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 7.06(a) with respect to such third–party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third–party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of any claim against the Indemnified Partyan indemnification third–party claim, then: (i) Except as set forth in Section 7.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; ​ (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s Representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided, that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third–party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third–party claim within thirty (30) days of receipt of notice of such claim in accordance with Section 7.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third–party claim following any such acceptance, (iii) the third–party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one (1) or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party or (v) the third–party claim includes damages that could exceed the limitations in Section 7.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third–party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third–party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third–party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this Article VII in respect of such third–party claim, then the Losses recoverable by the Indemnified Party shall include all reasonable costs and expenses, including the defense set forth herein. ​ (c) No third–party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No third–party claim may be settled by the Indemnifying Party without notice to, and the written consent of, the Indemnified Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 7.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon If the Indemnifying Party assumes the defense of a Third Party Claim pursuant to Section 9.3(a), the Indemnifying Party will appoint counsel reasonably satisfactory to the Indemnitee for the defense of such Third Party Claim, will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall cooperate with the Indemnifying Party and its counsel, including permitting reasonable access to books, records, and personnel, in connection with the defense of any Third Party Claim (provided, that any out-of-pocket costs incurred by the Indemnitee in providing such cooperation shall be paid by the Indemnifying Party). The Indemnitee will have the right to participate in such defense, including appointing separate counsel, but the costs of such participation shall be borne solely by the Indemnitee. The Indemnifying Party will have full authority, in consultation with the Indemnitee, to make all decisions and determine all actions to be taken with respect to the defense and settlement of the Third Party Claim, including the right to pay, compromise, settle, or otherwise dispose of such Third Party Claim at the Indemnifying Party's expense; provided, that any such settlement will be subject to the prior consent of the Indemnitee, which shall not be unreasonably withheld or delayed. If a firm offer is made to settle a Third Party Claim, which the Indemnifying Party desires to accept and which acceptance requires the consent of the Indemnitee pursuant to the immediately preceding sentence, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 10 days after its receipt of such notice, and such firm offer involves only the payment of money, the maximum liability of the Indemnifying Party with respect to such Third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of such notice for which the Indemnifying Party is otherwise liable. In no event will the <PAGE> Indemnifying Party have authority to agree to any relief binding on the Indemnitee other than the payment of money damages by the Indemnifying Party of a notice from the Indemnified Party with respect unless agreed to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedIndemnitee.

Defense of Third Party Claims. Upon receipt (a) In the event of the assertion or commencement by any Person of any claim or Proceeding (whether against Parent, any other Indemnitee or any other Person) with respect to which the Company may become obligated hereunder to indemnify, hold harmless, compensate or reimburse any Indemnitee pursuant to this Section 12, the party to be indemnified (the "INDEMNIFIED PARTY") shall, reasonably promptly following the Indemnified Party's actual knowledge thereof, notify the Person providing the indemnification hereunder (the "INDEMNIFYING PARTY") of such claim or Proceeding by providing notice to the Company and the Principal Shareholder. In any such event, the Indemnified Party may proceed with the defense of such claim or Proceeding and the Indemnifying Party shall bear and pay all costs and expenses (including attorneys fees and costs) in connection with the Indemnified Party's defense of any such claim or Proceeding (whether or not incurred by the Indemnified Party). (b) If the Indemnified Party so proceeds with the defense of any such claim or Proceeding: (i) all expenses reasonably incurred and relating to the defense of such claim or Proceeding (whether or not incurred by the Indemnified Party) shall be borne and paid exclusively by the Indemnifying Party; (ii) the Indemnifying Party of a notice from shall make available to the Indemnified Party with respect any documents and materials in the possession or control of the Indemnifying Party that may be necessary to any the defense of such claim of a third party against the Indemnified Party, for which or Proceeding; (iii) the Indemnified Party seeks indemnification hereunder, shall keep the Indemnifying Party Company and the Principal Shareholder informed of all material developments and events relating to such claim or Proceeding; (iv) the Company and the Principal Shareholder shall have the right to assume participate in the defense of such claim, and claim or proceeding at its own expense; and (v) the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense not settle, adjust or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle compromise such claim or Proceeding without the prior written consent of the Indemnified PartyCompany and the Principal Shareholder, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third The indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party under this Article IX shall have the right to assume conduct and control, through counsel of its own choosing reasonably acceptable to the indemnified party, any third-party claim, action, or suit or compromise or settlement thereof. The indemnified party may, at its election, participate in the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense action, or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense suit through counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If indemnified party, unless the Indemnifying Party has assumed indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the defense indemnifying party (in which case, if the indemnified party notifies the indemnifying party in writing that it elects separate counsel at the expense of any claim against the Indemnified Partyindemnifying party, the Indemnifying Party indemnifying party shall not have the right to settle assume the defense of such action on behalf of the indemnified party with respect to such defenses). If the indemnifying party shall fail to defend diligently any claim for which indemnification has been sought and is available hereunder; provided thatsuch third-party action, to the extent that such settlement requires the Indemnified Party to takeclaim, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Partysuit, then the Indemnifying Party indemnified party may defend, through counsel of its own choosing, such action, claim, or suit and may settle such action, claim, or suit and recover from the indemnifying party the amount of such settlement or of any judgment and the costs and expenses of such defense; provided, however, that the indemnifying party shall not be liable to pay any such settlement unless the indemnified party shall have given the indemnifying party written notice of the terms of the proposed settlement and the indemnifying party shall have failed, within ten (10) days of receipt of such notice, to undertake the defense of such action, claim, or suit. The indemnifying party shall not compromise or settle any third-party action, claim, or suit which includes any term that shall require any act or forbearance by the indemnified party from all liability in respect of such claim claim, action, or suit without the prior written consent of the Indemnified Partyindemnified party, such which consent shall not to be unreasonably withheld. Assumption by an indemnifying party of control of any such defense, conditioned compromise, or delayed. If the Indemnifying Party does settlement shall not assume the defense be deemed a waiver by it of a third party claim and disputes the Indemnified Party’s its right to indemnificationchallenge its obligation to indemnify the indemnified party; provided, however, that in such event, the Indemnified Party indemnifying party shall have not be entitled to reimbursement from the right to assume control indemnified party for the costs incurred in undertaking such defense. Parent and the Shareholders shall cooperate in all reasonable respects with each other in connection with the defense, negotiation, or settlement of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other any legal proceeding. In no circumstance may the Indemnified Party compromise , claim, or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not demand referred to be unreasonably withheld, conditioned or delayedin this Section 9.4.

Defense of Third Party Claims. Upon receipt Except as otherwise provided in Section 5.9(d) with respect to Tax Contests: (a) If any lawsuit or enforcement action is filed against an Indemnified Party by any third party (each a “Third Party Claim”) for which indemnification under this Article 7 may be sought, Notice thereof shall be given by the Indemnifying Party of a notice from Sellers’ Representative to Buyer or by Buyer to the Sellers’ Representative, as applicable, as promptly as practicable, but in any event within 90 days. The Notice shall describe in reasonable detail the facts and circumstances known to the Indemnified Party with respect that gave rise to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks such indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the amount or good faith estimate of the amount arising therefrom. The failure of any Indemnified Party to give timely Notice hereunder shall cooperate not affect rights to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such recordsindemnification hereunder, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, except to the extent that the Indemnifying Party was actually prejudiced by such settlement requires failure. (b) After such Notice, if the Indemnified recipient of the Notice acknowledges in writing to the sender that the applicable Indemnifying Parties are liable and have indemnity obligations for any Damages resulting from any such Third Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified PartyClaim, then the Indemnifying Party shall not be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such Third Party Claim, (ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnified Party) to diligently handle and defend the same, unless the named parties to such action or proceeding include both one or more Indemnifying Parties and an Indemnified Party, and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to an applicable Indemnifying Party or there is otherwise a conflict of interest that exists or is reasonably likely to exist that would make it inappropriate, in the reasonable judgment of the Indemnified Party, for the same counsel to represent both the Indemnified Party and the Indemnifying Party, in which event such Indemnified Party shall be entitled, at the Indemnifying Party’s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim without claim, which compromise or settlement shall be made only with the prior written consent of the Indemnified Party, unless the Indemnified Party and its Affiliates are released in full in connection with the settlement, such consent not to be unreasonably withheld. Notwithstanding the foregoing, conditioned the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim if the Third Party Claim seeks an order, injunction or delayedother equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with outside counsel, cannot be separated from any related claim for money damages. If such equitable relief or relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. If the Indemnifying Party does not elects to assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationThird Party Claim, the Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom and may, at its own expense, retain separate counsel of its choosing. The Parties shall cooperate with each other in any notifications to insurers. (c) If the Indemnifying Party fails to notify the Indemnified Party within ten (10) calendar days after receipt of the Notice that the Indemnifying Party elects to defend the Indemnified Party pursuant to this Section 7.4, or if the Indemnifying Party elects to defend the Indemnified Party pursuant to this Section 7.4 but fails to diligently prosecute or settle the Third Party Claim, then the Indemnified Party against which such claim has been asserted will have the right to assume control of the defense of such claim through counsel of its choiceundertake, the reasonable costs of which shall be at the Indemnifying Party’s expense in cost, risk and expense, the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceedingsettlement of such Third Party Claim on behalf of and for the account and risk of the Indemnifying Parties. In no circumstance may the The Indemnified Party compromise shall have full control of such defense and proceedings; provided, however, that such claim shall not be compromised or settle a claim with a third party for which it seeks indemnification from settled without the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall cooperate with the Indemnified Party in such consent not defense and make available to the Indemnified Party at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party, and the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Parties shall be liable for any settlement of any Third Party Claim effected pursuant to and in accordance with this Section 7.4 and for any final judgment (subject to any right of appeal), and each Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any Damages by reason of such settlement or judgment. (d) In the event Sellers have consented to any settlement pursuant to this Section 7.4 and the applicable Buyer Indemnified Party has elected to be unreasonably withheldpaid such amount (or a portion thereof) out of the Escrow Amount, conditioned or delayedthe Sellers’ Representative shall promptly deliver a notice to the Escrow Agent specifying the monetary amount such Buyer Indemnified Party has elected to paid out of the Escrow Amount and instruct the Escrow Agent to pay such amount out of the Escrow Fund to such Buyer Indemnified Party.

Defense of Third Party Claims. Upon receipt by If the Indemnifying Party assumes the defense of a notice from the Indemnified Third Party with respect Claim pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection 9.3(a), the Indemnifying Party will appoint counsel reasonably satisfactory to the Indemnitee for the defense of such Third Party Claim, will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall cooperate with the Indemnifying Party and its counsel, including permitting reasonable access to books, records, and personnel, in connection with the defense of any Third Party Claim (provided, that any out-of-pocket costs incurred by the Indemnitee in providing such cooperation shall be paid by the Indemnifying Party). The Indemnitee will have the right to assume participate in such defense, including appointing separate counsel, but the costs of such participation shall be borne solely by the Indemnitee. The Indemnifying Party will have full authority, in consultation with the Indemnitee, to make all decisions and determine all actions to be taken with respect to the defense and settlement of such claimthe Third Party Claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have including the right to employ its own counsel in any such casepay, but the fees and expenses compromise, settle, or otherwise dispose of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Third Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be Claim at the Indemnifying Party’s expense in expense; provided, that any such settlement will be subject to the event prior consent of the Indemnitee, which shall not be unreasonably withheld or delayed. If a firm offer is made to settle a Third Party Claim, which the Indemnifying Party desires to accept and which acceptance requires the consent of the Indemnitee pursuant to the immediately preceding sentence, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnified Party’s right Indemnitee fails to consent to such firm offer within 10 days after its receipt of indemnification such notice, and such firm offer involves only the payment of money, the maximum liability of the Indemnifying Party with respect to such Third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of such notice for which the Indemnifying Party is ultimately established through settlement, compromise or other legal proceedingotherwise liable. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from event will the Indemnifying Party without first obtaining have authority to agree to any relief binding on the prior written consent Indemnitee other than the payment of money damages by the Indemnifying PartyParty unless agreed to by the Indemnitee, such consent which agreement will not to be unreasonably withheld, conditioned withheld or delayed.

Defense of Third Party Claims. Upon receipt by If the Indemnifying Party assumes the defense of a notice from the Indemnified Third Party with respect Claim pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection 10.4(b), the Indemnifying Party will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall, and shall cause its Affiliates to, cooperate with the Indemnifying Party and its counsel, including making available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnitee’s possession or under the Indemnitee’s control relating thereto as is reasonably required by the Indemnifying Party. The Indemnitee will have the right to assume the defense of participate in such claimdefense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such caseincluding appointing separate counsel, but the fees and expenses costs of such counsel participation shall be at borne solely by the expense of the Indemnified PartyIndemnitee. If the Indemnifying Party has assumed the defense of any claim against the Indemnified PartySubject to Section 10.4(a), the Indemnifying Party shall have will, in consultation with the right Indemnitee, make all decisions and determine all actions to settle any claim for which indemnification has been sought and is available hereunder; provided that, be taken with respect to the extent defense and settlement of the Third Party Claim; provided, however, that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle pay, compromise, settle, or otherwise dispose of such claim Third Party Claim without the prior written consent of the Indemnified PartyIndemnitee, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party , provided that it will not be deemed to be unreasonable for an Indemnitee to withhold its consent if (A) such payment, compromise, settlement or disposition does not assume involve solely the defense payment of a third party claim and disputes money, (B) such payment, compromise, settlement or disposition does not involve solely the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control - 69 - payment of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from money by the Indemnifying Party without first obtaining recourse to the prior written Indemnitee, (C) such payment, compromise, settlement or disposition involves a finding or admission of violation of any Law, Order or Permit or rights of any Person by the Indemnitee or its Affiliates or (D) such payment, compromise, settlement or disposition does not contain an unconditional release of the Indemnitee from the subject matter of such payment, compromise, settlement or disposition. In no event will the Indemnifying Party have authority to agree, without the consent of the Indemnitee, to any relief binding on the Indemnitee other than the payment of money damages by the Indemnifying Party, such consent not Party without recourse to be unreasonably withheld, conditioned or delayedthe Indemnitee.

Defense of Third Party Claims. Upon receipt by ​ 0.0.0. Xx the Indemnifying Party event of a notice from the Indemnified Party any third party claim, threat, liability, tax, interest, fine, penalty, suit, action, proceeding, demand, damage, loss, cost, or expense with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderindemnity is or may be sought hereunder (an “Indemnity Claim”), the Indemnifying Party indemnified party shall have promptly notify the right to assume the defense indemnifying party of such claimIndemnity Claim in writing, specifying in reasonable detail the Indemnity Claim and the Indemnified Party circumstances under which it arose, although the failure to provide written notice shall cooperate to not discharge the extent reasonably requested by obligations of the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as indemnifying party. The indemnifying party may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimIndemnity Claim, at its expense, by providing written notice to the Indemnified Party indemnified party within ten days after the indemnifying party receives written notice of the Indemnity Claim, and the indemnifying party shall promptly engage counsel reasonably acceptable to the indemnified party to direct and conduct such defense; provided, however, that the indemnified party shall have the right to employ engage its own counsel counsel, at its own expense, to participate in any such case, but defense. In the fees and expenses event the indemnifying party does not so elect to assume the defense of such Indemnity Claim in the manner specified above, or if, in the reasonable opinion of counsel shall be to the indemnified party, there are defenses available to the indemnified party that are different from or additional to those available to the indemnifying party or that give rise to a material 13 ​ conflict between the defense of the indemnified party and of the indemnifying party, then upon written notice to the indemnifying party, the indemnified party may elect to engage separate counsel to conduct its defense, at the expense of the Indemnified Partyindemnifying party, and the indemnifying party shall not have the right to direct or conduct such defense. If ​ 0.0.0. Xx the Indemnifying Party has assumed event the indemnifying party assumes the defense of any claim against Indemnity Claim, it may at any time notify the Indemnified Partyindemnified party of its intention to settle, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to takecompromise, or prohibits satisfy such Indemnity Claim and may make such settlement, compromise, or satisfaction (at its own expense), unless within twenty days after the Indemnified Party from takinggiving of such notice the indemnified party gives notice of its intention to assume the defense of the Indemnity Claim, any action or purports in which event the indemnifying party shall be relieved of its duty hereunder to obligate indemnify the Indemnified Partyindemnified party; provided, then the Indemnifying Party however, that it shall not settle the Indemnity Claim unless the settlement does not entail any admission of liability on the part of any indemnified party and the settlement includes an unconditional release of each indemnified party reasonably satisfactory to the indemnified party from all losses with respect to such claim Indemnity Claim. Unless the indemnified party shall have given the notice referred to in the preceding sentence, (a) the indemnifying party shall not consent to or make any settlement, compromise, or satisfaction with respect to the Indemnity Claim without the prior written consent of the Indemnified Partyindemnified party, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through (b) any settlement, compromise compromise, or other legal proceeding. In no circumstance may satisfaction made by the Indemnified Party compromise or settle a claim indemnifying party with a third party for which it seeks indemnification from respect to such Indemnity Claim shall not be deemed to have been consented to by and shall not be binding upon the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedindemnified party.

Defense of Third Party Claims. Upon receipt by Indemnitee shall give the Indemnifying Party written notice thereof within a reasonable period of a time following the Indemnitee’s incurring receipt of notice from the Indemnified Party with respect to any claim of a third party against claim. Such notice shall describe the Indemnified claim in reasonable detail and shall indicate the amount (estimated if appropriate) of the Losses that have been or may be sustained by the Indemnitee. The failure to provide such notice shall not affect the Indemnifying Party, for which the Indemnified Party seeks indemnification ’s obligations hereunder, the unless such party is materially prejudiced as a result thereof. The Indemnifying Party shall have the right to assume the defense of such claimmay, and the Indemnified Party shall cooperate subject to the extent reasonably requested other provisions of this Section 10.3, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the Indemnifying Party asserted Liability of the Indemnitee in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithrespect of a third-party claim. If the Indemnifying Party shall elect to assume compromise or defend such asserted Liability, it shall, within thirty (30) days (or sooner, if the defense nature of such claimthe asserted Liability so requires), notify the Indemnified Party Indemnitee of its intention to do so and the Indemnitee shall have the right to employ its own counsel in any such casereasonably cooperate, but the fees and expenses of such counsel shall be at the request and reasonable expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, in the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to takecompromise of, or prohibits the Indemnified Party from takingdefense against, any action or purports to obligate the Indemnified Party, then the such asserted Liability. The Indemnifying Party shall not settle such be released from any obligation to indemnify the Indemnitee hereunder with respect to a claim without the prior written consent of the Indemnified Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to or injunctive relief against the Indemnitee and a complete release of the Indemnitee with respect thereto, which agreement shall not limit or impair the Indemnitee’s ability to conduct its business. The Indemnifying Party shall have the right, except as provided below in Section 10.4, to conduct and control the defense of any third-party claim made for which it has been provided notice hereunder. All costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate, but not control, at its own expense, the defense or settlement of any such consent claim; provided, that if the Indemnitee and the Indemnifying Party shall have conflicting or different claims or defenses, the Indemnifying Party shall not have control of such conflicting or different claims or defenses and the Indemnitee shall be entitled to appoint a separate counsel for such claims and defenses at the cost and expense of the Indemnifying Party; provided, further, that if the Indemnifying Party shall not assume and pursue in a timely and diligent manner the defense of any third-party claim, the Indemnifying Party shall cede control of such claim and the Indemnitee shall be unreasonably withheldentitled to appoint a counsel of its choice for such defense, conditioned or delayedat the cost and expense of the Indemnifying Party. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right shall choose to indemnificationdefend any claim, the Indemnified Party Indemnitee shall have the right make available to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyany books, records or other documents within its control that are reasonably required for such consent not to be unreasonably withheld, conditioned or delayeddefense.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, Party for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, except if the aggregate amount of the potential obligations of the Indemnified Party regarding such claim is reasonably likely to exceed the maximum obligations of the Indemnifying Party under this Agreement regarding such claim. The Indemnifying Parties and the Indemnified Party Parties shall cooperate to the extent reasonably requested by the Indemnifying Party other in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party other party in connection therewith. To elect to conduct such defense, the Indemnifying Party must give written notice of such election to the Indemnified Party within 30 days (or within the shorter period, if any, during which a defense must be commenced for the preservation of rights) after the Indemnified Party gives the corresponding initial claim notice to the Indemnifying Party (otherwise, such right to conduct such defense will be deemed waived). If the Indemnifying Party shall elect validly makes such election, it will nonetheless lose such right to assume conduct such defense if it fails to continue to actively and diligently conduct such defense. Also, if the defense of Indemnifying Party validly makes such claimelection, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party, and will have the right to receive copies of all notices, pleadings or other similar submissions regarding such defense. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party will keep the Indemnified Party reasonably informed of all matters material to such defense and third party claim at all stages thereof, and shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided provided, however, that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent Party (which shall not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choicechoice in any manner that the Indemnified Party reasonably deems appropriate, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks has an established right to indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by Indemnitee shall give the Indemnifying Party written notice thereof within a reasonable period of a time following the Indemnitee’s incurring receipt of notice from the Indemnified Party with respect to any claim of a third party against claim. Such notice shall describe the Indemnified claim in reasonable detail and shall indicate the amount (estimated if appropriate) of the Losses that have been or may be sustained by the Indemnitee. The failure to provide such notice shall not affect the Indemnifying Party, for which the Indemnified Party seeks indemnification ’s obligations hereunder, the unless such party is materially prejudiced as a result thereof. The Indemnifying Party shall have the right to assume the defense of such claimmay, and the Indemnified Party shall cooperate subject to the extent reasonably requested other provisions of this Section 7.4, compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the Indemnifying Party asserted Liability of the Indemnitee in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithrespect of a third-party claim. If the Indemnifying Party shall elect to assume compromise or defend such asserted Liability, it shall, within thirty (30) days (or sooner, if the defense nature of such claimthe asserted Liability so requires), notify the Indemnified Party Indemnitee of its intention to do so and the Indemnitee shall have the right to employ its own counsel in any such casereasonably cooperate, but the fees and expenses of such counsel shall be at the request and reasonable expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, in the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to takecompromise of, or prohibits the Indemnified Party from takingdefense against, any action or purports to obligate the Indemnified Party, then the such asserted Liability. The Indemnifying Party shall not settle such be released from any obligation to indemnify the Indemnitee hereunder with respect to a claim without the prior written consent of the Indemnified Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to or injunctive relief against the Indemnitee and a complete release of the Indemnitee with respect thereto, which agreement shall not limit or impair the Indemnitee’s ability to conduct its business. The Indemnifying Party shall have the right, except as provided below in Section 7.4, to conduct and control the defense of any third-party claim made for which it has been provided notice hereunder. All costs and fees incurred with respect to any such claim shall be borne by the Indemnifying Party. The Indemnitee shall have the right to participate, but not control, at its own expense, the defense or settlement of any such consent claim; provided, that if the Indemnitee and the Indemnifying Party shall have conflicting or different claims or defenses, the Indemnifying Party shall not have control of such conflicting or different claims or defenses and the Indemnitee shall be entitled to appoint a separate counsel for such claims and defenses at the cost and expense of the Indemnifying Party; provided, further, that if the Indemnifying Party shall not assume and pursue in a timely and diligent manner the defense of any third-party claim, the Indemnifying Party shall cede control of such claim and the Indemnitee shall be unreasonably withheldentitled to appoint a counsel of its choice for such defense, conditioned or delayedat the cost and expense of the Indemnifying Party. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right shall choose to indemnificationdefend any claim, the Indemnified Party Indemnitee shall have the right make available to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyany books, records or other documents within its control that are reasonably required for such consent not to be unreasonably withheld, conditioned or delayeddefense.

Defense of Third Party Claims. Upon receipt by (i) In the Indemnifying Party event of a Third Party Claim, Indemnitor shall have thirty (30) days (or such lesser time as may be necessary to comply with statutory response requirements for litigation claims that are included in such Third Party Claims provided the Indemnitee has given notice of such Third Party Claim after receipt thereof; provided further that failure of Indemnitee to timely notify Indemnitor will not relieve Indemnitor of its obligations hereunder unless any delay in such notice results in the inability of Indemnitor to defend such Third Party Claim) from receipt of the Indemnified Party Indemnification Claim (the “Notice Period”) to notify the Indemnitee, (i) whether or not Indemnitor disputes its liability to the Indemnitee with respect to such claim, and (ii) notwithstanding any such dispute, whether or not Indemnitor will, at its sole cost and expense, defend the Indemnitee against such claim. (ii) In the event that Indemnitor notifies the Indemnitee within the Notice Period that it will defend the Buyer Indemnitee against such claim then, except as hereinafter provided, Indemnitor shall have the right, or at Indemnitee’s reasonable election the obligation, to defend the Indemnitee by appropriate proceedings, which proceedings shall be promptly settled or prosecuted by Indemnitor to a final conclusion, provided, Indemnitor shall not agree to any settlement which would result in Indemnitee becoming subject to liability for any other significant matter. If Buyer desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense. If Buyer desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense. If in the reasonable opinion of the Buyer Indemnitee, any such claim or the litigation or resolution of any such claim involves an issue or matter that could have a third party against future material adverse effect on the Indemnified PartyBuyer Indemnitee and involves a continuing relationship of Buyer with respect to the Property, for which Company or LLCs, including, without limitation, a dispute with a current tenant, licensee or governmental entities having jurisdiction over the Indemnified Party seeks indemnification hereunderProperty or Company or LLCs with respect to the Property and its ongoing operation, the Indemnifying Party Buyer Indemnitee shall have the right to assume jointly participate in the defense or settlement of any such claimclaim or demand and its reasonable costs and expenses shall be included as part of the indemnification obligation of Seller Indemnitor, and no settlement shall be made without the Indemnified Party reasonable concurrence of both parties. (iii) Except where Indemnitor disputes its liability in a timely and reasonable manner under this Section 16(f), Indemnitor shall be conclusively liable for the amount of any loss or other damage resulting from such claim or defense. (iv) the Indemnitee and Indemnitor shall cooperate to the extent reasonably requested by the Indemnifying Party with each other in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party reasonable respects in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed with the defense of any claim against the Indemnified PartyThird Party Claim, the Indemnifying Party shall have the right including making available records relating to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedclaim.

Defense of Third Party Claims. Upon receipt In the event that any legal proceeding shall be instituted, or that any claim or demand shall be asserted by the Indemnifying Party any Person in respect of a notice which one party hereto is entitled to receive payment from the Indemnified Party with respect other party hereto pursuant to SECTIONS 11.1 and 11.2, the party seeking indemnification shall promptly cause written notice of the assertion of any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right it has knowledge which is covered by this indemnity to assume the defense of such claim, and the Indemnified Party shall cooperate be forwarded to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such recordsother party, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided thatother party shall, to the extent that such settlement requires of its indemnification, and at its own expense, by counsel of its choice, which must be reasonably satisfactory to the Indemnified Party to takeparty seeking indemnification, defend the party seeking indemnification against, and negotiate, settle, or prohibits otherwise deal with any proceeding, claim, or demand which is related to any matter indemnified against by the Indemnified Party from takingindemnifying party hereunder; provided, any action or purports to obligate the Indemnified Partyhowever, then the Indemnifying Party that no settlement shall not settle such claim be made without the prior written consent of the Indemnified Partyparty seeking indemnification, such which consent shall not to be unreasonably withheld, conditioned or delayed; and provided further that the indemnifying party shall keep the party seeking indemnification advised as to the status of the matter. The party seeking indemnification may participate in any such proceeding with counsel of its choice at its expense. If the Indemnifying Party does not assume party seeking indemnification refuses to approve a proposed settlement that is acceptable to the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationclaimant, the Indemnified Party shall have indemnifying party may, at its option, deposit the right to assume control proposed settlement with the party seeking indemnification and thereupon be relieved of any further indemnity obligation in connection with such claim, including, but not limited to, attorneys' fees and expenses thereafter incurred. If upon the resolution of any such claim or proceeding which is the subject of the defense aggregate dollar limitations on claims set forth in SECTIONS 8 and 9 the aggregate amount of claims and related expenses which are subject to such limitation for which the indemnifying party is then liable is less than its limitation, any reasonable attorneys' fees and expenses incurred by the indemnifying party in defending against such claim through counsel shall within thirty (30) days after demand be paid by the indemnified party to the indemnifying party. The parties hereto agree to cooperate fully with the defense, negotiation, or settlement of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other any such legal proceeding. In no circumstance may , claim or demand, but without expense to the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedseeking indemnification.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against any party entitled to the Indemnified Partybenefit of indemnity hereunder, for which written notice thereof shall be given to the Indemnified Party seeks indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, except to the extent that the indemnifying party demonstrates actual damage caused by such settlement requires failure. After such notice, if the Indemnified Party indemnifying party shall acknowledge in writing to take, the indemnified party that the indemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Partyaction, then the Indemnifying Party indemnifying party shall not be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which 44 event the indemnified party shall be entitled, at the indemnifying party's cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim without claim, which compromise or settlement shall be made only with the prior written consent of the Indemnified Partyindemnified party, such consent not to be unreasonably withheld (unless such compromise or settlement (a) solely requires payment of monetary damages by the indemnifying party and (b) does not impose obligations or restrictions on or require the admission of liability by the indemnified party or its business, in which case approval of the indemnified party shall not be required); provided, however, if the resolution of any such Claim is reasonably expected to impose obligations or restrictions on the indemnified party or its business, then, notwithstanding the foregoing, the indemnified party shall be entitled to control such resolution, including, without limitation, to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party's cost, risk and expense, and to compromise or settle such Claim (which compromise or settlement shall be subject to the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume the defense of a third indemnifying party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right fails to assume control of the defense of such claim through counsel within fifteen (15) calendar days after receipt of its choicethe Claim Notice, the reasonable costs of indemnified party against which shall be such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the Indemnifying Party’s expense in indemnifying party's cost and expense, the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceeding. In no circumstance may settlement of such claim on behalf of and for the Indemnified Party compromise account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or settle a claim with a third party for which it seeks indemnification from settled without the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such which consent shall not to be unreasonably withheld. In the event the indemnified party assumes the defense of the claim, conditioned the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or delayedsettlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 8.3 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment. The right to indemnification, payment of Damages or other remedy based on any representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable or being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedies based on such representations, warranties, covenants and obligations.

Defense of Third Party Claims. Upon receipt (a) If the Indemnified Party's claim for indemnification is based, under this Agreement, on a claim, demand, investigation, action or proceeding, judicial or otherwise, brought by a third party, and the Indemnifying Party does not object under SECTION 9.4(b) of this Agreement, the Indemnifying Party shall, within the 30 day period (or any extended period) referred to in SECTION 9.4(a) of this Agreement, assume the defense of such third-party claim at its sole cost and expense and shall thereafter be designated as the "CASE HANDLER." Any such defense shall be conducted by attorneys employed by the Indemnifying Party. The Indemnified Party may retain attorneys of a notice from its own choosing to participate in such defense at the Indemnified Party's sole cost and expense. (b) If the Indemnifying Party assumes the defense of any such third-party claim, the Indemnifying Party may settle or compromise the claim without the prior consent of the Indemnified Party with respect so long as all present and future claims relating to any the compromised claim of a third party against the Indemnified Party, Party are irrevocably and unconditionally released in full. (c) The Indemnifying Party shall pay to the Indemnified Party in immediately available funds the amount for which the Indemnified Party seeks indemnification hereunder, is entitled to be indemnified within 30 days after the Indemnifying Party shall have the right to assume the defense settlement or compromise of such claim, and third-party claim or the Indemnified Party shall cooperate judgment of a court of competent jurisdiction (or within such longer period as agreed to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayedparties). If the Indemnifying Party does not assume the defense of any such third-party claim, the Indemnifying Party shall be bound by the result obtained with respect thereto by the Indemnified Party, except that the Indemnifying Party has the right to contest that it is obligated to the Indemnified Party under the terms of this Agreement, provided the Indemnifying Party shall have raised its objection in a timely manner under SECTION 9.4 of this Agreement. (d) In the event a claim, demand, action or proceeding is brought by a third party claim in which the liability as between the Purchaser and disputes the Indemnified Party’s right Seller and its Parents is alleged to indemnificationbe joint or in which the entitlement to indemnification hereunder is not readily determinable, the Indemnified Parties shall cooperate in a joint defense. Such joint defense shall be under the general management and supervision of the party which is expected to bear the greater share of the liability, and which will be considered the Case Handler, unless otherwise agreed; PROVIDED, HOWEVER, that neither Party shall have settle or compromise any such joint defense matter without the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyother. The costs of such joint defense, any settlement and any award or judgment (unless the award or judgment specifies otherwise) shall be borne as the Parties may agree; or in the absence of such agreement, such consent not costs shall be borne by the Party incurring such costs, subject to be unreasonably withheld, conditioned or delayedultimate resolution between the Purchaser and the Seller pursuant to SECTION 10 of this Agreement.

Defense of Third Party Claims. Upon receipt (a) If any legal proceedings shall be instituted or any claim is asserted by any third party (a “Third Party Claim”) in respect of which any Indemnifying Party may have an obligation to indemnify an Indemnified Party, then the Indemnified Party shall give the Indemnifying Party of a written notice from the thereof within 10 Business Days after receipt by such Indemnified Party with respect of notice of the Third Party Claim, but any failure to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, so notify the Indemnifying Party shall not relieve it from any liability that it may have the right to assume the defense of such claim, and the Indemnified Party shall cooperate other than to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithis actually prejudiced thereby. If the Indemnifying Party shall elect to assume the defense of such claimThereafter, the Indemnified Party shall have deliver to the right to employ its own counsel in any such caseIndemnifying Party, but the fees and expenses of such counsel shall be at the expense of within five Business Days’ time after the Indemnified Party’s receipt thereof, copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. If The Indemnified Party and the Indemnifying Party has assumed the defense agree to keep each other reasonably apprised of any claim additional information concerning such Third Party Claim. (b) If a Third Party Claim is made against the an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the right defense thereof and, subject to settle any claim for which indemnification has been sought and is available hereunder; provided thatSection 10.03(c), if it so chooses, upon written notice to the extent that such settlement requires the Indemnified Party within 10 Business Days after having received the applicable claim notice with respect to takesuch Third Party Claim, or prohibits to assume the defense thereof with counsel selected by the Indemnifying Party; provided that such counsel is not reasonably objected to by the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnified Party from taking, any action or purports shall be entitled to obligate the Indemnified Party, then participate in such defense but the Indemnifying Party shall not settle be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with such claim without participation; provided, however, that the prior written consent Indemnifying Party shall be liable for such legal expenses if the Indemnified Party determines in good faith that the incurrence of the same is appropriate in light of defenses not available to the Indemnifying Party, conflicts of interest or other similar circumstances. (c) Notwithstanding anything in Section 10.03(b) to the contrary, in no event shall the Indemnifying Party have the right to assume, or continue, the defense of a Third Party Claim if (i) such Third Party Claim relates to or arises in connection with any criminal Action, (ii) such Third Party Claim seeks an injunction or other equitable relief against any Indemnified Party or any of its Affiliates, (iii) the Indemnifying Party has an interest, other than any interest under this Agreement, with respect to such Third Party Claim, which interest conflicts (as reasonably determined by counsel for the Indemnified Party) with the interests of the Indemnified Party, (iv) the Indemnifying Party fails to diligently defend such consent Third Party Claim, or (v) Seller is the Indemnifying Party and the Third Party Claim is covered under or erodes the Representation and Warranty Policy. (d) Each party shall cooperate, and cause its Affiliates to cooperate in the defense or prosecution of any Third Party Claim. Such cooperation shall include the retention and, upon a party’s reasonable request, the provision to such party of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide testimony or additional information and explanation of any material provided hereunder. (e) In the event the Indemnifying Party elects to assume the defense of a Third Party Claim in accordance with Section 10.03(b), the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of such claim or ceasing to defend against such claim (with such approval not to be unreasonably withheld, conditioned or delayed. ); provided, however, that if the Indemnifying Party assumes the defense of a Third Party Claim in accordance with Section 10.03(b), the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, which unconditionally releases the Indemnified Party and its Affiliates completely in connection with such Third Party Claim and does not impose or purport to impose any obligation or restriction on such Indemnified Party or any of its Affiliates (including any injunctive or other equitable relief against any Indemnified Party or any of its Affiliates or any action or restriction upon the conduct of any business by any Indemnified Party or any of its Affiliates). (f) Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). (g) If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choicein accordance with Section 10.03(b), or the Indemnifying Party does not have the right to assume, or continue, the reasonable costs defense of which such claim pursuant to Section 10.03(c), then the Indemnified Party (i) shall be at have the Indemnifying Party’s expense in the event that right to defend such Third Party Claim as if such Indemnified Party were not entitled to indemnification under this Article X, with counsel selected by the Indemnified Party’s right , in all proceedings and (ii) shall keep the Indemnifying Party informed of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the progress of the Third Party Claim and shall as promptly as practicable provide such Indemnifying Party with copies of all notices and documents (including court papers) received by the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from relating to such Third Party Claim. (h) Notwithstanding the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyforegoing, such consent Sections 7.05(h) and 7.05(i), and not this Section 10.03, shall apply to be unreasonably withheld, conditioned or delayedany Tax Proceeding.

Defense of Third Party Claims. Upon receipt (a) If an Indemnified Party receives written notice or otherwise obtains knowledge of any third-party claim or any threatened third-party claim that gives rise or is reasonably likely to give rise to a Claim against an Indemnifying Party, then the Indemnified Party shall promptly deliver to the Indemnifying Party a written notice describing such third-party claim in reasonable detail. The untimely delivery of such written notice by the Indemnified Party to the Indemnifying Party shall relieve the Indemnifying Party of a notice from the Indemnified Party liability with respect to any such third-party claim only to the extent that it has actually been prejudiced by lack of a third timely notice under this Section 8.06(a) with respect to such third-party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the claim. The Indemnifying Party shall have the right right, at its option, to assume the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense third-party claim with counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such which counsel shall be at the expense of reasonably acceptable to the Indemnified Party. If the Indemnifying Party has assumed elects to assume the defense of any claim against the Indemnified Partyan indemnification third-party claim, then: (i) Except as set forth in Section 8.06(b), the Indemnifying Party shall have not be required to pay or otherwise indemnify the right Indemnified Party against any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in connection with such matter following the Indemnifying Party’s election to settle assume the defense of such matter so long as the Indemnifying Party continues to diligently conduct such defense; (ii) The Indemnified Party shall, subject to the Indemnifying Party’s agreement to appropriate confidentiality restrictions, use reasonable efforts to make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any claim of the Indemnified Party’s Representatives that the Indemnifying Party reasonably considers necessary or desirable for which indemnification has been sought the defense of such matter and is available hereunder; provided thatshall, upon prior request and to the extent reasonably necessary in connection with the defense of such claim, make available to the Indemnifying Party reasonable access to the Indemnified Party’s personnel; provided, that such settlement requires nothing herein shall require the Indemnified Party to takedisclose privileged documents that are unrelated to such claim except to the extent Indemnified Party is compelled to do so by a court of competent jurisdiction; and (iii) The Indemnified Party shall not be required to admit any liability with respect to such third-party claim. (b) If (i) the Indemnifying Party fails or refuses to assume the defense of and indemnification for such third-party claim within forty-five (45) days of receipt of notice of such claim in accordance with Section 8.06(a), (ii) the Indemnifying Party fails to actively and diligently defend such third-party claim following any such acceptance, (iii) the third-party claim includes an injunction or prohibits seeks other equitable relief, (iv) the Indemnified Party shall have been advised by counsel reasonably acceptable to the Indemnifying Party that there are one (1) or more legal or equitable defenses available to it which are different from takingor in addition to those available to the Indemnifying Party, any action or purports to obligate and, in the reasonable opinion of the Indemnified Party, counsel for the Indemnifying Party could not adequately represent the interests of the Indemnified Party because such interests would be in conflict with those of the Indemnifying Party or (v) the third-party claim includes damages that could exceed the limitations in Section 8.04, then at the Indemnified Party’s option, the Indemnified Party may assume the defense and if it assumes the defense, the Indemnified Party shall proceed to actively and diligently defend such third-party claim with the assistance of counsel of its selection, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such third-party claim, with its own counsel and at its own expense; provided, that if the Indemnifying Party agrees in writing that the Indemnified Party is entitled to indemnification hereunder for such third-party claim, and the Indemnifying Party is otherwise determined to be obligated for the Losses under this Article VIII in respect of such third-party claim, then the Losses recoverable by the Indemnified Party shall include all reasonable costs and expenses, including the defense set forth herein. (c) No third-party claim may be settled by the Indemnified Party without notice to, and the written consent of, the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. For purposes of this Section 8.06, the decision not to pursue an appeal (whether as of right or discretionary) shall be deemed to be a decision to settle such claim without or compromise, requiring the prior written consent of the Indemnified Party, such consent Party that has not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of assumed the defense of such claim through counsel of its choicematter, the reasonable costs of which consent shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by If the Indemnifying Party assumes the defense of a notice from the Indemnified Third Party with respect Claim pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection 9.3(a), the Indemnifying Party will appoint counsel reasonably satisfactory to the Indemnitee for the defense of such Third Party Claim, will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall cooperate with the Indemnifying Party and its counsel, including permitting reasonable access to books, records, and personnel, in connection with the defense of any Third Party Claim (provided, that any out-of-pocket costs incurred by the Indemnitee in providing such cooperation shall be paid by the Indemnifying Party). The Indemnitee will have the right to assume participate in such defense, including appointing separate counsel, but the costs of such participation shall be borne solely by the Indemnitee. The Indemnifying Party will have full authority, in consultation with the Indemnitee, to make all decisions and determine all actions to be taken with respect to the defense and settlement of such claimthe Third Party Claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have including the right to employ its own counsel in any such casepay, but the fees and expenses compromise, settle, or otherwise dispose of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Third Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be Claim at the Indemnifying Party’s expense in expense; provided, that any such settlement will be subject to the event prior consent of the Indemnitee, which shall not be unreasonably withheld or delayed. If a firm offer is made to settle a Third Party Claim, which the Indemnifying Party desires to accept and which acceptance requires the consent of the MINNESOTA GAS Indemnitee pursuant to the immediately preceding sentence, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnified Party’s right Indemnitee fails to consent to such firm offer within 10 days after its receipt of indemnification such notice, and such firm offer involves only the payment of money, the maximum liability of the Indemnifying Party with respect to such Third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of such notice for which the Indemnifying Party is ultimately established through settlement, compromise or other legal proceedingotherwise liable. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from event will the Indemnifying Party without first obtaining have authority to agree to any relief binding on the prior written consent Indemnitee other than the payment of money damages by the Indemnifying Party, such consent not Party unless agreed to be unreasonably withheld, conditioned or delayedby the Indemnitee.

Defense of Third Party Claims. (a) Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to Claim Notice of any claim of a third party against the suit, action, investigation, claim or proceeding for which indemnification might be claimed by an Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right be entitled to assume the defense of defend, contest or otherwise protect against any such claimsuit, action, investigation, claim or proceeding at its own cost and expense, and the Indemnified Party must reasonably cooperate in any such defense or other action. The Indemnified Party shall cooperate have the right, but not the obligation, to the extent reasonably requested by the Indemnifying Party participate at its own expense in defense or prosecution thereof and shall furnish such recordsby counsel of its own choosing, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If but the Indemnifying Party shall elect be entitled to control the defense unless the Indemnified Party has relieved the Indemnifying Party from liability with respect to the particular matter or the Indemnifying Party fails to assume the defense of the matter. (b) In the event the Indemnifying Party shall fail to defend, contest or otherwise protect in a timely manner against any such claimsuit, action, investigation, claim or proceeding, the Indemnified Party shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the Indemnifying Party including, without limitation, reasonable attorneys' fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party must send a written notice to the Indemnifying Party of any such proposed settlement or compromise, which settlement or compromise the Indemnifying Party may reject within thirty (30) days of receipt of such notice. Failure to reject such notice within such thirty (30) day period shall be deemed an acceptance of such settlement or compromise. Consent of the Indemnifying Party to such proposed settlement or compromise may not be unreasonably withheld, delayed or conditioned. The Indemnified Party shall have the right to employ its own counsel in any such case, but effect a settlement or compromise over the fees and expenses of such counsel shall be at the expense objection of the Indemnified Indemnifying Party. If ; provided, that if (i) the Indemnifying Party is contesting such claim in good faith or (ii) the Indemnifying Party has assumed the defense of any claim against from the Indemnified Party, the Indemnified Party waives any right to indemnity therefor unless consent of the Indemnifying Party shall have to such proposed settlement or compromise was unreasonably withheld, delayed or conditioned. (c) If the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to Indemnifying Party undertakes the extent that defense of such settlement requires matters then the Indemnified Party to takeshall not, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If so long as the Indemnifying Party does not assume abandon the defense of a third party claim and disputes thereof, be entitled to recover from the Indemnified Party’s right to indemnification, Indemnifying Party any legal or other expenses subsequently incurred by the Indemnified Party shall have the right to assume control of in connection with the defense of such claim through counsel of its choice, thereof other than the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may investigation undertaken by the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party. (d) Buyer, Company, the Majority Shareholders and each of their successors and assigns shall cooperate with each other in the defense of any suit, action, investigation, proceeding or claim by a third party, shall keep each other informed of all settlement negotiations with third parties and the progress of any litigation and, during normal business hours, shall afford each other access to their books and records and employees relating to such consent not suit, action, investigation, proceeding or claim and shall furnish each other all such further information that they have the right and power to furnish as may reasonably be unreasonably withheldnecessary to defend such suit, conditioned action, investigation, proceeding or delayedclaim.

Defense of Third Party Claims. Upon receipt by (a) In the Indemnifying Party event of a notice Third Party Claim, the Indemnitor shall have thirty (30) days (or such lesser time as may be necessary to comply with statutory response requirements for litigation claims that are included in such Third Party Claim) from receipt of the Indemnified Party Indemnification Claim (the “Notice Period”) to notify the Indemnitee, (i) whether or not the Indemnitor disputes its liability to the Indemnitee with respect to any such Third Party Claim, and (ii) whether or not the Indemnitor irrevocably acknowledges its obligation to indemnify the Indemnitee with respect to such Third Party Claim pursuant to this Article 10 and will, at its sole cost and expense, defend the Indemnitee against such Third Party Claim. (b) In the event that the Indemnitor notifies the Indemnitee within the Notice Period that it irrevocably acknowledges its obligation to indemnify the Indemnitee with respect to a Third Party Claim and will defend the Indemnitee against such claim of a third party against the Indemnified Partythen, for which the Indemnified Party seeks indemnification hereunderexcept as hereinafter provided, the Indemnifying Party Indemnitor shall have the right to assume defend the Indemnitee by appropriate proceedings, which proceedings shall be promptly settled or prosecuted by the Indemnitor to a final conclusion in such a manner as to minimize the risk of the Indemnitee becoming subject to Liability for any other significant matter, and if Indemnitor so elects to defend such claim, Indemnitor shall be conclusively liable for the amount of any Loss resulting from such Third Party Claim or defense. If the Indemnitee desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense and under the employ of separate counsel. If in the reasonable opinion of the Indemnitee, (i) any such Third Party Claim or the litigation or resolution of any such Third Party Claim involves an issue or matter that could have an adverse effect on the value of the acquired Business or Acquired Assets or obligations under any Assumed Liability, including the administration of the Tax Returns of the Indemnitee or a dispute with a significant customer or supplier of the Business, (ii) the Indemnitor fails to provide the Indemnitee with evidence reasonably satisfactory to the Indemnitee that Indemnitor has the financial resources to properly defend against such Third Party Claim and fulfill its obligations hereunder, (iii) the claim involves an injunction or other equitable relief, (iv) the settlement of, or an adverse judgment with respect to, the claim may, in the good faith judgment of the Indemnitee, establish a precedential custom or practice adverse to the continuing business interests of the Indemnitee, or (v) the Indemnitor does not continue to conduct the defense of such claimthe claim in a reasonably active and diligent manner, then after notice and a 30 day cure period, the Indemnified Party Indemnitee shall cooperate have the sole right to control the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof settlement of such Third Party Claim and all of Indemnitee’s costs and expenses of assuming and prosecuting such defense shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals be included as may be reasonably requested by part of the Indemnifying Party in connection therewithindemnification obligation of the Indemnitor. If the Indemnifying Party shall Indemnitee should elect to assume exercise such right, (A) the defense of such claim, the Indemnified Party Indemnitor shall have the right to employ its own counsel in any such caseparticipate in, but not control, the fees and expenses defense or settlement of such Third Party Claim at its sole cost and expense, absent conflicts of interest or other potential adverse consequences to the defense of the claims as reasonably determined by the Indemnitee and under the employ of separate counsel and (B) no settlement of any damage claims in connection with such Third Party Claim shall be at made without the expense consent of Indemnitor, which consent shall not be unreasonably withheld or delayed. (c) The Indemnitee and the Indemnified Party. If the Indemnifying Party has assumed Indemnitor shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim against the Indemnified Partyand furnishing, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, without expense to the extent that such settlement requires the Indemnified Party to takeIndemnitor, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent management employees of the Indemnified Party, such consent not to Indemnitee as may be unreasonably withheld, conditioned or delayed. If reasonably necessary for the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control preparation of the defense of any such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense Third Party Claim or for testimony as witness in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified any proceeding relating to such Third Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedClaim.

Defense of Third Party Claims. Upon receipt by Should any claim be made or suit ----------------------------- or proceeding be instituted against an Indemnitee which, if prosecuted successfully, would be a matter for which such Indemnitee is entitled to indemnification under this Article VI (a "Third Party Claim"), the obligations and liabilities of the parties hereunder with respect to such Third Party Claim shall be subject to the following terms and conditions: (a) Indemnitee shall give the Indemnifying Party written notice of a any such Third Party Claim promptly after receipt by Indemnitee of notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Partythereof, for which the Indemnified Party seeks indemnification hereunder, and the Indemnifying Party shall have the right may, subject to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified PartyIndemnitee, cure such consent not Third Party claim or undertake control of the defense thereof by counsel of his or its own choosing reasonably acceptable to be unreasonably withheld, conditioned or delayedIndemnitee. If the Indemnifying Party does not has undertaken control of the defense of the matter, Indemnitee may participate in the defense through his or its own counsel at his or its own expense. In the event an Indemnifying Party desires to assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationmatter, the Indemnified Indemnifying Party shall provide the Indemnitee with reasonable assurances of the Indemnifying Party's ability to bear the costs of such defense and any likely outcome. If, however, the Indemnifying Party fails or refuses to undertake the defense of such Third Party Claim within fifteen (15) days after written notice of such claim has been delivered to the Indemnifying Party by Indemnitee, Indemnitee shall have the right to assume control undertake the defense, compromise and settlement of such Third Party Claim in any manner which the Indemnitee deems is reasonable with counsel of its own choosing; provided, however, that Trendmark may not settle a claim in a manner that would materially adversely affect USA Talks' business or obligations pursuant to this Agreement and USA Talks may not settle or claim in a manner that would materially adversely affect Trendmark's business or obligations pursuant to this Agreement. In the circumstances described in the preceding sentence, Indemnitee shall, promptly upon its assumption of the defense of such claim through counsel of its choiceThird Party Claim, the reasonable costs of make an Indemnification Claim as specified in Section 6.3(b), which shall be at the Indemnifying Party’s expense in the event deemed an Indemnification Claim that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.not

Defense of Third Party Claims. Upon receipt In addition to the provisions of Section 7.03, the obligations and liabilities of the Company to indemnify any other party under this Article VII with respect to Claims or Damages relating to or arising from third party claims or actions (a “Third Party Claim”), shall be subject to the following terms and conditions: (a) The party or parties to be indemnified hereunder (whether one or more, the “Indemnified Party”) will give the Sellers’ Representative prompt written notice of any such Third Party Claim. The Sellers’ Representative may undertake the defense thereof by the Indemnifying Party of a notice from representatives chosen by it and reasonably acceptable to the Indemnified Party upon written notice to the Indemnified Party within 20 days of receiving notice of such Third Party Claim (or sooner if the nature of the Third Party Claim so requires); provided that the Sellers’ Representative agrees that such claim for indemnification associated with respect such Third Party Claim shall be discharged with amounts from the Escrow Fund. Failure of the Indemnified Party to any claim give such notice shall not affect the Sellers’ duty or obligations under this Article VII, except to the extent the Sellers’ are materially prejudiced thereby. If the Sellers’ Representative undertakes the defense of a third party against Third Party Claim, the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Company will be responsible for the reasonable fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Sellers’ Representative has selected has a conflict of interest). The Indemnified Party shall make available to the Sellers’ Representative or its representatives all records and other materials required by them and in the possession or under the control of the Indemnified Party, for the use of the Sellers’ Representative and its representatives in defending any such Third Party Claim, and shall in other respects give reasonable cooperation in such defense. After the Closing, in any circumstance in which the Company would be the indemnifying party, Sellers’ Representative shall have full authority to act as attorney-in-fact for each of the Sellers’ for whose account Escrow Funds have been deposited pursuant to the Escrow Agreement, all in accordance with Section 7.04 hereof. (b) If the Sellers’ Representative, within 20 days after notice of any such Third Party Claim (or sooner if the nature of the Third Party Claim so requires), fails to agree to defend such Third Party Claim or thereafter fails or ceases to defend such Third Party Claim, actively and in good faith, then the Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall will (upon further notice) have the right to assume undertake the defense defense, compromise or settlement of such claimThird Party Claim, or consent to the entry of a judgment with respect thereto, and the Sellers and the Sellers’ Representative shall thereafter have no right to challenge the Indemnified Party’s defense, compromise or settlement thereof. (c) Notwithstanding anything in this Article VII to the contrary (i) if a Third Party Claim could reasonably be expected to adversely affect the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense other than as a result of money damages or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimother money payments, the Indemnified Party shall have the right to employ its own counsel in any such casedefend, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, compromise or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim Third Party Claim, and (ii) the Sellers’ Representative shall not, without the prior written consent of the Indemnified Party, settle or compromise any Third Party Claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of an unconditional release from all liability in respect of such Third Party Claim. (d) The party controlling the defense of any Third Party Claim shall deliver, or cause to be delivered, to the other parties copies of all correspondence, pleadings, motions, briefs, appeals or other written statements relating to or submitted in connection with the defense of the Third Party Claim, and timely notices of, and the right to participate in (as an observer) any hearing or other court proceeding relating to the Third Party Claim. (e) Within two (2) Business Days following final, nonappealable resolution of an Assumed Claim (as defined herein) with the applicable third party to such Assumed Claim (whether through compromise, settlement, the entry of a judgment with respect thereto or otherwise) in accordance with the terms of this Section 7.02, the Sellers’ Representative shall pay (solely by directing delivery of amounts from the Escrow Fund pursuant to Section 7.04) the Indemnified Party an amount in cash equal to the amount of Damages incurred by the Indemnified Party in connection with such Assumed Claim, together with interest from the date such Damages were incurred by the Indemnified Party until the date of actual payment, at an annual rate equal to the prime interest rate then generally in effect on the date of payment as set forth in The Wall Street Journal. For purposes of this Agreement, an “Assumed Claim” is (i) a Third Party Claim the defense of which is undertaken by the Sellers’ Representative pursuant to the terms of this Section 7.02 or (ii) a Third Party Claim the defense of which is undertaken by the Indemnified Party and the resolution of which (whether through compromise, settlement, the entry of a judgment with respect thereto or otherwise) has been consented to in writing by the Sellers’ Representative, which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third The indemnifying party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunder, the Indemnifying Party under this Section 8 shall have the right to assume conduct and control, through counsel of its own choosing reasonably acceptable to the indemnified party, the defense of any third-party claim, action, or suit or compromise or settlement thereof. If the indemnifying party assumes the defense, the indemnified party may, at its election, participate in the defense of any such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense action, or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense suit through counsel of such claim, the Indemnified Party shall have the right to employ its own counsel in any such casechoosing, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If indemnified party, unless the Indemnifying Party has assumed indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the defense indemnifying party (in which case, if the indemnified party notifies the indemnifying party in writing that it elects separate counsel at the expense of any claim against the Indemnified Partyindemnifying party, the Indemnifying Party indemnifying party shall not have the right to settle assume the defense of such action on behalf of the indemnified party with respect to such defenses). If the indemnifying party shall fail to defend diligently any claim for which indemnification has been sought and is available hereunder; provided thatsuch third-party action, to the extent that such settlement requires the Indemnified Party to takeclaim, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Partysuit, then the Indemnifying Party indemnified party may defend, through counsel of its own choosing, such action, claim, or suit and may settle such action, claim, or suit and recover from the indemnifying party all Losses associated therewith including the amount of such settlement or of any judgment and the costs and expenses of such defense. The indemnifying party shall not compromise or settle any third-party action, claim, or suit on terms that that shall require any act or forbearance by the indemnified party or that do not include a full and complete release of the indemnified party from all liability in respect of such claim claim, action, or suit without the prior written consent of the Indemnified Partyindemnified party, such consent which shall not to be unreasonably withheld. Assumption by an indemnifying party of control of any such defense, conditioned compromise, or delayed. If the Indemnifying Party does settlement shall not assume the defense be deemed a waiver by it of a third party claim and disputes the Indemnified Party’s its right to indemnificationchallenge its obligation to indemnify the indemnified party; provided, however, that in such event, the Indemnified Party indemnifying party shall have not be entitled to reimbursement from the right to assume control indemnified party for the costs incurred in undertaking such defense. The Buyer and the Sellers shall cooperate in all reasonable respects with each other in connection with the defense, negotiation, or settlement of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other any legal proceeding. In no circumstance may the Indemnified Party compromise , claim, or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not demand referred to be unreasonably withheld, conditioned or delayedin this Section 8.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed against an Indemnified Party by any third party (each, a “Third Party Claim”) for which indemnification under this Article X may be sought, Notice thereof shall be given to the Indemnifying Party as promptly as practicable. The failure of a notice from the any Indemnified Party with respect to any claim give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of a third party against the defense and investigation of such Third Party Claim, (ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnified Party) to handle and defend the same, for which unless the named parties to such action or proceeding include both one or more Indemnifying Parties and an Indemnified Party seeks indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claimParty, and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to an applicable Indemnifying Party, in which event such Indemnified Party shall cooperate be entitled, at the Indemnifying Parties’ reasonable cost, risk and expense, to separate counsel (provided that such counsel is reasonably acceptable to the extent reasonably requested by the Indemnifying Party in defense Party), and (iii) to compromise or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of settle such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel which compromise or settlement shall be at made only (x) with the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned withheld or delayed(y) if such compromise or settlement contains an unconditional release of the Indemnified Party in respect of such claim. If the Indemnifying Party does not elects to assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationThird Party Claim, the Indemnified Party shall have cooperate in all reasonable respects with the right Indemnifying Party and its attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers. If the Indemnifying Party fails to assume control of the defense of such claim through counsel within fifteen (15) calendar days after receipt of its choicethe Notice, the reasonable costs of Indemnified Party against which shall be such claim has been asserted will have the right to undertake, at the Indemnifying Party’s expense in Parties’ reasonable cost, risk and expense, the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceeding. In no circumstance may settlement of such Third Party Claim on behalf of and for the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from account and risk of the Indemnifying Party Parties; provided, however, that such claim shall not be compromised or settled without first obtaining the prior written consent of the Indemnifying Party, such which consent shall not to be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, conditioned the Indemnified Party will keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or delayedsettlement.

Defense of Third Party Claims. Upon receipt by If the Indemnifying Party assumes the defense of a notice from the Indemnified Third Party with respect Claim pursuant to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderSection 9.3(a), the Indemnifying Party will appoint counsel reasonably satisfactory to the Indemnitee for the defense of such Third Party Claim, will diligently pursue such defense, and will keep the Indemnitee reasonably STLD01-1185616-10 MICHIGAN GAS informed with respect to such defense. The Indemnitee shall cooperate with the Indemnifying Party and its counsel, including permitting reasonable access to books, records, and personnel, in connection with the defense of any Third Party Claim (provided, that any out-of-pocket costs incurred by the Indemnitee in providing such cooperation shall be paid by the Indemnifying Party). The Indemnitee will have the right to assume participate in such defense, including appointing separate counsel, but the costs of such participation shall be borne solely by the Indemnitee. The Indemnifying Party will have full authority, in consultation with the Indemnitee, to make all decisions and determine all actions to be taken with respect to the defense and settlement of such claimthe Third Party Claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have including the right to employ its own counsel in any such casepay, but the fees and expenses compromise, settle, or otherwise dispose of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Third Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be Claim at the Indemnifying Party’s expense in expense; provided, that any such settlement will be subject to the event prior consent of the Indemnitee, which shall not be unreasonably withheld or delayed. If a firm offer is made to settle a Third Party Claim, which the Indemnifying Party desires to accept and which acceptance requires the consent of the Indemnitee pursuant to the immediately preceding sentence, the Indemnifying Party will give written notice to the Indemnitee to that effect. If the Indemnified Party’s right Indemnitee fails to consent to such firm offer within 10 days after its receipt of indemnification such notice, and such firm offer involves only the payment of money, the maximum liability of the Indemnifying Party with respect to such Third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnitee up to the date of such notice for which the Indemnifying Party is ultimately established through settlement, compromise or other legal proceedingotherwise liable. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from event will the Indemnifying Party without first obtaining have authority to agree to any relief binding on the prior written consent Indemnitee other than the payment of money damages by the Indemnifying Party, such consent not Party unless agreed to be unreasonably withheld, conditioned or delayedby the Indemnitee.

Defense of Third Party Claims. Upon Should any claim be made, or suit or proceeding (including, without limitation, a binding arbitration or an audit by any taxing authority) be instituted against Indemnitee by a Third Party which, if prosecuted successfully, would be a matter for which Indemnitee is entitled to indemnification under this Agreement (a “Third Party ClaimSection 8.7”), the obligations and liabilities of the parties hereunder with respect to such Third Party Claim shall be subject to the following terms and conditions: (a) The Indemnitee shall give the Indemnitor written notice of any such claim promptly after receipt by the Indemnifying Party Indemnitee of a notice from thereof, and the Indemnified Party Indemnitor will undertake the defense thereof by representatives of its own choosing reasonably acceptable to the Indemnitee. The assumption of the defense of any such claim by the Indemnitor shall be an acknowledgement by the Indemnitor of its obligation to indemnify the Indemnitee with respect to any such claim of a third party against the Indemnified Partyhereunder. If, for which the Indemnified Party seeks indemnification hereunderhowever, the Indemnifying Party Indemnitor fails or refuses to undertake the defense of such claim within fifteen (15) days after written notice of such claim has been given to the Indemnitor by the Indemnitee, the Indemnitee shall have the right to assume undertake the defense, compromise, and, settlement of such claim with counsel of its own choosing. The Indemnitor shall have the right to participate in any defense assumed by the Indemnitee, at its sole cost and expense. In the circumstances described in the preceding sentence, the Indemnitee shall, promptly upon its assumption of the defense of such claim, make an Indemnification Claim as specified in Section 5.4, which shall be deemed an Indemnification Claim that is not a Third Party Claim for the purposes of the procedures set forth herein. (b) The Indemnitee and the Indemnified Party Indemnitor shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing, without expense to the extent reasonably requested by Indemnitor, management employees of the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals Indemnitee as may be reasonably requested by necessary for the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense preparation of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, or for testimony as witnesses in any proceeding relating to such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedclaim.

Defense of Third Party Claims. Upon receipt by In the Indemnifying Party event of a notice from the Indemnified Party with respect to any claim of or demand asserted by a third party against the Indemnified Party, for which the Indemnified (a “Third Party seeks indemnification hereunderClaim”), the Indemnifying Party shall have the right right, but not the obligation, exercisable by written notice to assume the Indemnified Party within fifteen (15) business days of the date of the notice of the claim concerning the commencement or assertion of any Third Party Claim, to participate in the defense of such claim, and the Indemnified Third Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithClaim. If the Indemnifying Party shall elect gives such notice of intent to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Partydefend, the Indemnifying Party shall have assume the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to defense thereof as follows: (i) the extent that such settlement requires Indemnifying Party will defend the Indemnified Party against the matter with counsel compensated by and chosen by the Indemnifying Party, subject to take, or prohibits the Indemnified Party’s reasonable prior approval of such counsel; (ii) the Indemnified Party from taking, any action or purports to obligate may retain separate co-counsel at the sole cost and expense of Indemnified Party; (iii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party, then which consent will not be unreasonably withheld, delayed or conditioned; and (iv) the Indemnifying Party shall will not settle such claim consent to the entry of any judgment with respect to the matter, or enter into any settlement, without the prior written consent of the Indemnified Party, such which consent will not to be unreasonably withheld, conditioned delayed or delayedconditioned. If In assuming the defense of any Third Party Claim, the Indemnifying Party does may reserve the right to contest whether any or all of such claim is indemnifiable hereunder; provided, that, the Indemnifying Party shall promptly relinquish its right to represent the Indemnified Party with respect to such Third Party Claim in the event the Indemnifying Party subsequently determines that it is not assume liable to the Indemnified Party with respect to such Third Party Claim. If, however, (x) no Indemnifying Party notifies the Indemnified Party within fifteen (15) business days after the Indemnified Party has been given notice of the matter, that the Indemnifying Party is assuming the defense thereof or (y) the likely maximum liability under such Third Party Claim is greater than the available indemnification amount for the Indemnifying Party (after taking into account the amount of a third party claim all other claims for which the Indemnifying Party may be or may be claimed to be liable and disputes the Indemnified Party’s right to indemnificationany limitations contained in Section 9.7 hereof), then the Indemnified Party shall have defend against the right to assume control claim. No failure or delay on the part of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from to so notify the Indemnifying Party shall limit any of the obligations of the Indemnifying Party under this Article 9, except to the extent that the Indemnifying Party has been prejudiced thereby. The Indemnified Party shall not settle such Third Party Claim without first obtaining the prior written consent of the Indemnifying Party, such which consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned.

Defense of Third Party Claims. Upon receipt by the Indemnifying of an Indemnity Claim Notice involving a Third Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified an indemnifying Party seeks indemnification hereunderbelieves it may have an obligation of indemnity under this Agreement, the Indemnifying indemnifying Party shall have the shall, if it so elects in accordance with this Section 8.9 (without prejudice to its right to contest its obligation of indemnity under this Agreement), assume the defense of such claim, the Third Party Claim with counsel selected by the indemnifying Party and reasonably satisfactory to the Indemnified Party indemnified Person as provided herein below. The indemnified Person shall cooperate in all reasonable respects; provided, however, it shall not be obligated to the extent reasonably requested by the Indemnifying Party incur any out-of-pocket cost or expense in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewithdefense. If any Third Party Claim involves a fact pattern wherein each Party may have an obligation to indemnify the Indemnifying other Party, each Party shall elect to may assume the defense of such claimand hire counsel for that portion of the Third Party Claim for which it may have an obligation of indemnity. In all instances, the Indemnified indemnified Person may employ separate counsel and participate in the defense of any Third Party shall have Claim; provided, however, if the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying indemnifying Party has assumed the defense of any claim against a Third Party Claim pursuant to this Section 8.9 and has agreed to indemnify the Indemnified Partyindemnified Person, the Indemnifying fees and expenses of counsel employed by the indemnified Person shall be borne solely by the indemnified Person. If (a) the underlying Third Party Claim meets any applicable per-Claim threshold, (b) the underlying Third Party Claim plus all previously asserted underlying Claims that meet any applicable per-Claim threshold have exceeded the Aggregate Deductible Amount, if applicable in the circumstances, and (c) the indemnifying Party elects, by written notice, to undertake the defense of the Third Party Claim within thirty (30) Days after receipt of the Indemnity Claim Notice, then, subject to the limitations on indemnity contained in this Agreement, (i) the indemnifying Party shall have defend the right indemnified Person against such Third Party Claim, (ii) the indemnifying Party shall pay any judgment entered or settlement with respect to settle any claim for which indemnification has been sought and is available hereunder; provided thatsuch Third Party Claim, to (iii) the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying indemnifying Party shall not settle consent to the entry of any judgment or enter into any settlement with respect to such claim Third Party Claim that (A) does not include a provision whereby the plaintiff or claimant in the matter releases the indemnified Person from all liability with respect to such Third Party Claim and (B) would restrict such indemnified Person’s ability to conduct its business, and (iv) the indemnified Person shall not consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the indemnifying Party’s prior written consent of the Indemnified Partyconsent, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying indemnifying Party does has not assume elected to undertake the defense of a third party claim and disputes Third Party Claim, or if the Indemnified Party’s right indemnifying Party assumes the defense of a Third Party Claim HOUSTON 1139976v.13 pursuant to indemnificationthis Section 8.9 but fails to diligently prosecute or settle the Third Party Claim, then the Indemnified Party indemnified Person shall have the right to assume defend, at the sole cost and expense of the indemnifying Party (to the extent the indemnified Person is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings. In such instances, the indemnified Person shall have full control of the such defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event and proceedings; provided that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may indemnified Person shall not settle such Third Party Claim without the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying indemnifying Party, such which consent shall not to be unreasonably withheld, conditioned or delayed; provided, however, that if the indemnifying Party fails to notify the indemnified Person in writing as to whether or not it consents to such proposed settlement within the shorter of (i) fifteen (15) Days following its receipt of notice of such proposed settlement from the indemnified Person and (ii) the offer period under such proposed settlement (but in no event less than five (5) Business Days following its receipt of notice of such proposed settlement), then such consent shall be deemed given. Any notification by such indemnifying Party that it is withholding its consent to any proposed settlement shall provide a reasonably detailed explanation of the reasons for withholding its consent. The indemnifying Party may participate in, but not control, any defense or settlement controlled by an indemnified Person pursuant to this Section 8.9, and the indemnifying Party shall bear its own costs and expenses with respect to such participation. Notwithstanding the other provisions of this Section 8.9, if the indemnifying Party disputes its potential liability to the indemnified Person under this Section 8.9 and if such dispute is resolved in favor of the indemnifying Party, the indemnifying Party shall not be required to bear the costs and expenses of the indemnified Person’s defense pursuant to this Section 8.9.

Defense of Third Party Claims. Upon receipt by a. In the Indemnifying Party event of a notice from the Indemnified Party any third party claim, threat, liability, tax, interest, fine, penalty, suit, action, proceeding, demand, damage, loss, cost or expense with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderindemnity is or may be sought hereunder (an "Indemnity Claim"), the Indemnifying Party indemnified party shall have promptly notify the right to assume the defense indemnifying party of such claimIndemnity Claim, specifying in reasonable detail the Indemnity Claim and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as circumstances under which it arose. The indemnifying party may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimIndemnity Claim, at its expense, by providing written notice to the Indemnified Party indemnified party within ten (10) days after the indemnifying party receives notice of the Claim, and the indemnifying party shall promptly engage counsel reasonably acceptable to the indemnified party to direct and conduct such defense; provided, however, that the indemnified party shall have the right to employ engage its own counsel counsel, at its own expense, to participate in any such case, but defense. In the fees and expenses event the indemnifying party does not so elect to assume the defense of such Indemnity Claim in the manner specified above, or if, in the reasonable opinion of counsel shall be to the indemnified party, there are defenses available to the indemnified party which are different from or additional to those available to the indemnifying party or which give rise to a material conflict between the defense of the indemnified party and of the indemnifying party, then upon notice to the indemnifying party, the indemnified party may elect to engage separate counsel to conduct its defense, at the expense of the Indemnified Party. If indemnifying party, and the Indemnifying Party has assumed indemnifying party shall not have the right to direct or conduct such defense. b. In the event the indemnifying party assumes the defense of any claim against Indemnity Claim, it may at any time notify the Indemnified Partyindemnified party of its intention to settle, compromise or satisfy such Indemnity Claim and may make such settlement, compromise or satisfaction (at its own expense) unless within twenty (20) days after the Indemnifying Party giving of such notice the indemnified party shall give notice of its intention to assume the defense of the Indemnity Claim, in which event the indemnifying party shall be relieved of its duty hereunder to indemnify the indemnified party. Unless the indemnified party shall have given the right notice referred to settle in the preceding sentence, (i) the indemnified party shall not consent to or make any claim for which indemnification has been sought and is available hereunder; provided thatsettlement, compromise or satisfaction with respect to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim Indemnity Claim without the prior written consent of the Indemnified Partyindemnifying party, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through (ii) any settlement, compromise or other legal proceeding. In no circumstance may satisfaction made by the Indemnified Party compromise or settle a claim indemnifying party with a third respect to such Indemnity Claim shall be deemed to have been consented to by indemnified party for which it seeks indemnification from and shall be binding upon the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedindemnified party.

Defense of Third Party Claims. Upon receipt If any Action is asserted or filed by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against any party entitled to the Indemnified Partybenefit of indemnity under this Agreement, for which the Indemnified Party seeks party entitled to indemnity hereunder shall deliver a Claim Notice to the indemnifying party as promptly as practicable (and in any event within fifteen (15) calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, except to the extent that the indemnifying party demonstrates actual damage caused by such settlement requires failure. After such notice, if the Indemnified Party indemnifying party acknowledges in writing to take, or prohibits the Indemnified Party from taking, any action or purports to obligate indemnified party that the Indemnified Partyindemnifying party shall be obligated under the terms of its indemnity hereunder in connection with such Action, then the Indemnifying Party indemnifying party shall not be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such Action, (ii) to employ and engage attorneys of its own choice to handle and defend the same unless the named parties to such action or proceeding include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim without claim, which compromise or settlement shall be made only with the prior written consent of the Indemnified Partyindemnified party, such consent not to be unreasonably withheld; provided, conditioned however, if the remediation or delayedresolution of any such Claim will occur on or at any Facility or is reasonably expected to have a Material Adverse Effect on the indemnified party’s business operations, or Taxes (including the Taxes of any of the Company or its Subsidiaries for any Tax period or portion thereof after the Closing Date), then, notwithstanding the foregoing, the indemnified party shall be entitled to control such remediation or resolution, including, without limitation, to take control of the defense and investigation of such lawsuit or action, to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying party’s cost, risk and expense, and to compromise or settle such Claim. If the Indemnifying Party does not assume the defense of a third indemnifying party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right fails to assume control of the defense of such claim through counsel within fifteen (15) calendar days after receipt of its choicethe Claim Notice, the reasonable costs of indemnified party against which shall be such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the Indemnifying Partyindemnifying party’s expense in cost and expense, the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceeding. In no circumstance may settlement of such claim on behalf of and for the Indemnified Party compromise account and risk of the indemnifying party; provided, however, that such Claim shall not be compromised or settle a claim with a third party for which it seeks indemnification from settled without the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such which consent shall not to be unreasonably withheld. If the indemnified party assumes the defense of the claim, conditioned the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or delayedsettlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 8.5(d) and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless an indemnified party from and against any Damages by reason of such settlement or judgment.

Defense of Third Party Claims. Upon receipt The Indemnifying Party shall be entitled to participate in the defense of the Third Party Claim and, if it so chooses, to assume the defense thereof, at its own expense, with counsel selected by the Indemnifying Party of a notice from (so long as such counsel is not reasonably objected to by the Indemnified Party) if: (i) the Indemnifying Party makes reasonably adequate provision to satisfy the Indemnified Party with respect of the Indemnifying Party’s ability to any claim of a third party against defend, satisfy and discharge such Third-Party Claim; (ii) no material defense exists for the Indemnified Party which is not available to the Indemnifying Party; and (iii) if the named parties to such Third Party Claim (including impleaded parties) include both the Indemnifying Party and the Indemnified Party, for which representation of both parties by the same counsel would not be appropriate due to actual material differing interests between them (as determined by the Indemnified Party seeks indemnification hereunderin its reasonable discretion) (collectively, the “Defense Conditions”). If the Indemnifying Party elects to assume the defense of any Third Party Claim, the Indemnifying Party shall have not be liable to the right to assume Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if any of such claimthe Defense Conditions cease to be satisfied for any reason, the Indemnified Party may assume its own defense, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense will be liable for all reasonable costs or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party expenses paid or incurred in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, and the Indemnified Party shall have the right to employ its own counsel in compromise or settle such Third Party Claim with the consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed) and, if settled with such consent, or if there is a final judgment against the Indemnified Party, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. In the event the Indemnifying Party has assumed control of the defense of the Third Party Claim, the Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of any such case, but action or suit through counsel chosen by the Indemnified Party; provided that such counsel is not reasonably objected to by the Indemnifying Party and the fees and expenses of such counsel shall be at the expense of borne by the Indemnified Party. If The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party in the defense of a Third Party Claim for any period during which the Indemnifying Party has not assumed the defense of any claim against thereof (other than during the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, period prior to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, time the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from notified the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedThird Party Claim).

Defense of Third Party Claims. Upon (a) The Indemnifying Party shall have thirty (30) days after receipt by of the Litigation Notice to notify the Claimant that it acknowledges its obligation to defend, indemnify, and hold harmless the Claimant with respect to the Indemnity Loss set forth in the Litigation Notice and that it elects to conduct and control any Proceeding with respect to an identifiable claim (the “Election Notice”). (b) If the Indemnifying Party gives a Disagreement Notice or does not give the foregoing Election Notice during such thirty (30) day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the exercise of a notice from its reasonable discretion; provided however, that the Indemnified right of the Claimant to indemnification hereunder shall not be conclusively established thereby. (c) If the Indemnifying Party with respect to any claim of a third party against timely gives the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderforegoing Election Notice, the Indemnifying Party shall have the right to assume undertake, conduct and control, at the defense Indemnifying Party’s sole expense, the conduct and settlement of such claimProceeding, and the Indemnified Party Claimant shall cooperate cooperate, including providing access to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof records and shall furnish such recordsPersonnel, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by with the Indemnifying Party in connection therewith. If ; provided however, that: (i) The Indemnifying Party and the Claimant shall exercise their responsibilities under this Section 8.04 in good faith; (ii) The Indemnifying Party shall elect not consent to assume the defense imposition of such claim, any injunction against the Indemnified Claimant without the prior written consent of the Claimant; (iii) The Indemnifying Party shall have not settle a claim without the right prior written consent of the Claimant unless the sole relief provided is monetary in nature and does not include any finding or admission of a violation by the Claimant of any Law or any Person’s rights; (iv) The Indemnifying Party shall permit the Claimant to employ its own participate in such conduct or settlement through legal counsel in any such casechosen by the Claimant, but the fees and expenses of such legal counsel shall be at borne by the expense Claimant; (v) Upon a final determination of the Indemnified Party. If such Proceeding, the Indemnifying Party has assumed shall promptly reimburse the defense Claimant, to the extent required under this Article VIII, for the full amount of any claim against Indemnity Loss incurred by the Indemnified PartyClaimant, except fees and expenses of legal counsel that the Claimant incurred pursuant to clause (ii) above; (vi) The Indemnifying Party shall have the right to pay or settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports suit provided the Claimant has no Liability with respect to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party settlement; and (vii) The Claimant shall have the right to assume control of the defense of pay or settle any such claim through counsel of its choiceProceeding; provided however, the reasonable costs of which shall be at the Indemnifying Party’s expense that in the event that of a payment or settlement pursuant to clause (iv), the Indemnified Party’s Claimant shall waive any right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from to indemnity therefor by the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to and no amount in respect thereof shall be unreasonably withheld, conditioned or delayedclaimed as an Indemnity Loss under this Article VIII.

Defense of Third Party Claims. Upon receipt If a claim for indemnification pursuant to Section 11.2 or 11.3 shall arise from any Action made or brought by a third party that would reasonably be expected to result in indemnifiable Losses (a “Third Party Claim”), the Indemnifying Party may assume the defense of the Third Party Claim. If the Indemnifying Party assumes the defense of the Third Party Claim, the defense shall be conducted by counsel chosen by the Indemnifying Party of a notice from Party, who shall be reasonably acceptable to the Indemnified Party, provided that the Indemnified Party shall retain the right to employ its own counsel and participate in the defense of the Third Party Claim at its own expense (which shall not be recoverable from the Indemnifying Party under this Article XI unless (i) the Indemnified Party is advised by counsel reasonably satisfactory to the Indemnifying Party that use of counsel of the Indemnifying Party’s choice would be expected to give rise to a conflict of interest, (ii) the Indemnifying Party shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the assertion of any such claim or institution of any such Action, or (iii) the Indemnifying Party shall authorize the Indemnified Party in writing to employ separate counsel at the expense of the Indemnifying Party, in each of which cases the reasonable expenses of counsel to the Indemnified Party shall be reimbursed by the Indemnifying Party). In no event shall the Indemnifying Party be obligated to pay the fees and expenses of more than one counsel (other than local counsel) for all Indemnified Parties with respect to any claim indemnified under this Article XI; provided, that an Indemnified Party shall be entitled to employ separate counsel at the expense of the Indemnifying Party if the Indemnified Party is advised by counsel reasonably satisfactory to the Indemnifying Party that use of such other counsel would give rise to a third party against conflict of interest, in which case the reasonable expenses of counsel to such Indemnified Party shall be reimbursed by the Indemnifying Party. Notwithstanding the foregoing provisions of this Section 11.5(b), (i) no Indemnifying Party shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 11.2 or 11.3 without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, unless it has assumed the defense of such Third Party Claim and as part of the settlement the Indemnified Party is released from all liability with respect to the Third Party Claim and the settlement does not impose any equitable remedy on the Indemnified Party or require the Indemnified Party to admit any fault, culpability or failure to act by or on behalf of the Indemnified Party, and (ii) no Indemnified Party shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 11.2 or 11.3 without the Indemnified Indemnifying Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed, unless the Third Party seeks indemnification hereunderClaim is for money damages only and such settlement does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of the Indemnifying Party shall have the right to assume the defense and as part of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by settlement the Indemnifying Party in defense or prosecution thereof is released from all liability (for indemnification pursuant to this Article XI and shall furnish otherwise) with respect to such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Third Party in connection therewithClaim. If the Indemnifying Party shall elect does not notify the Indemnified Party within twenty (20) Business Days after receipt of the Indemnified Party’s notice of a Third Party Claim of indemnity hereunder that it elects to assume the control of the defense of such claimany Third Party Claim, the Indemnified Party shall have the right to employ its own counsel in contest the Third Party Claim but shall not thereby waive any such case, but right to indemnity therefor pursuant to this Agreement and the fees and expenses costs of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, Actions by the Indemnified Party shall have the right to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at paid by the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by In the case of a Third Party Claim, the Indemnifying Party may, at its option, assume and control the defense of a notice from the Indemnified Party an Indemnifiable Claim with respect counsel reasonably satisfactory to any claim of a third party against the Indemnified Party, which approval shall not be unreasonably withheld or delayed, provided that any Indemnifiable Losses that may be incurred or suffered by the Indemnified Party in connection with such Indemnifiable Claim shall constitute Indemnifiable Losses for which the Indemnified Party seeks shall be entitled to indemnification hereunder, under this Article X. Notwithstanding the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claimforegoing, the Indemnified Party shall have the right to employ retain counsel of its choice at its own counsel expense and participate in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayedIndemnifiable Claim. If the Indemnifying Party does not assume such defense or the defense of a third party claim and disputes Indemnifying Party notifies the Indemnified Party’s right to indemnificationParty within ten (10) days after receipt of notice thereof that the Indemnifying Party will not assume such defense, the Indemnified Party shall have the right to assume may control of the defense of such claim through counsel and may settle the claim on behalf of its choice, and for the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent account and risk of the Indemnifying Party, who shall be bound by the result. In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense, provided, that if the Indemnifying Party assumes control of such consent not defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have a conflict of interest or different defenses available with respect to such Indemnifiable Claim, the reasonable fees and expenses of counsel of Indemnified Party will be unreasonably withheldconsidered "Indemnifiable Losses" for purposes of this Agreement. If the Indemnifying Party assumes the defense of such Indemnifiable Claim in accordance with this Section 10.3(b), conditioned (i) as long as the Indemnifying Party diligently conducts such defense, the Indemnifying Party shall have no liability for any legal or delayedother expenses subsequently incurred by the Indemnified Party in TC1:469823 EXECUTION STOCK PURCHASE AGREEMENT connection with such Indemnifiable Claim (other than as expressly contemplated in the immediately preceding sentence and the reasonable out-of-pocket costs and attorneys' fees of investigation and cooperation by the Indemnified Party that may be requested by the Indemnifying Party in such defense) but the Indemnifying Party shall thereafter indemnify and hold the Indemnified Party harmless from and against all Indemnifiable Losses with respect to such Indemnifiable Claim in accordance with the terms of this Agreement; and (ii) the Indemnifying Party shall present any defense reasonably suggested by the Indemnified Party or its counsel.

Defense of Third Party Claims. Upon receipt If any lawsuit or enforcement action is filed by the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against any party entitled to the Indemnified Partybenefit of indemnity hereunder with respect thereto, for which written notice thereof shall be given to the Indemnified Party seeks indemnifying party as promptly as practicable (and in any event within 15 calendar days after the service of the citation or summons). The failure of any indemnified party to give timely notice hereunder shall not affect rights to indemnification hereunder, the Indemnifying Party shall have the right to assume the defense of such claim, and the Indemnified Party shall cooperate to the extent reasonably requested by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect to assume the defense of such claim, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party has assumed the defense of any claim against the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, except to the extent that the indemnifying party has been damaged by such settlement requires failure as described in the Indemnified Party proviso to takeSection 9.2(e). After such notice, if (1) the indemnifying party shall acknowledge in writing to the indemnified party that the indemnifying party is obligated under the terms of its indemnity hereunder to indemnify the indemnified party in connection with such lawsuit or prohibits the Indemnified Party from takingaction, any action or purports to obligate the Indemnified Partyand (2) such third party claim is solely for monetary losses, then the Indemnifying Party indemnifying party shall not settle be entitled, if it elects to do so, at its own cost, risk and expense, (i) to take control of the defense and investigation of such claim lawsuit or action, (ii) to employ and engage legal counsel of its own choice, but, in any event, reasonably acceptable to the indemnified party, to handle and defend the same unless the named parties to such action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised by counsel that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party, in which event the indemnified party shall be entitled, at the indemnifying party’s cost, risk and expense, to separate counsel of its own choosing. The indemnifying party shall not, without the prior written consent of the Indemnified Partyindemnified party, which shall not be unreasonably withheld, conditioned or delayed, (x) settle or compromise any Claim or consent to the entry of any judgment which does not include an unconditional written release by the claimant or plaintiff of the indemnified party from all Liability in respect of such Claim or (y) settle or compromise any Claim if the settlement imposes equitable remedies or obligations on the indemnified party other than financial obligations for which such indemnified party will be fully indemnified hereunder. No Claim which is being defended in good faith by the indemnifying party in accordance with the terms of this Agreement shall be settled or compromised by the indemnified party without the written consent of the indemnifying party, which consent shall not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not indemnifying party fails to assume the defense of a third party claim and disputes such lawsuit or action within 30 calendar days after receipt of the Indemnified Party’s right Claim Notice or is not permitted to indemnificationassume such defense pursuant to this Section 9.2(f), the Indemnified Party shall indemnified party against which such lawsuit or action has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to assume control of undertake, at the defense of such claim through counsel of its choiceindemnifying party’s cost and expense, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through settlementdefense, compromise or other legal proceeding. In no circumstance may settlement of such lawsuit or action on behalf of and for the Indemnified Party compromise account and risk of the indemnifying party; provided, however, that such lawsuit or settle a claim with a third party for which it seeks indemnification from action shall not be compromised or settled without the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Partyindemnifying party, such which consent shall not to be unreasonably withheld, conditioned or delayed. If the indemnified party settles or compromises such lawsuit or action without the prior written consent of the indemnifying party, the indemnifying party will bear no Liability hereunder for or with respect to such lawsuit or action unless the indemnifying party unreasonably withheld, conditioned or delayed its consent. In the event either party assumes the defense of a particular lawsuit or action in the manner contemplated above, the party assuming such defense will keep the other party reasonably informed of the progress of any such defense, compromise or settlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 9.2 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any Losses by reason of such settlement or judgment. Each of the parties hereto shall reasonably cooperate with the other party to allow the other party to fulfill its indemnification obligations under this Agreement, including by making available employees with knowledge, and documentation, relevant to the indemnifiable claim, provided that the indemnifying party shall be liable for the indemnified party’s out-of-pocket expenses in this regard. To the extent of any conflict between the provisions of this Section 9.2(f) and the provisions of Section 6.5 with respect to a Tax Contest, the provisions of Section 6.5 shall control.

Defense of Third Party Claims. Upon receipt If any Valid Claim arises out of or involves a claim or demand made by any person against the Second Step Surviving Corporation or the indemnified party (a “Third Party Claim”), then the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the indemnified party therefor, to assume the defense thereof with counsel selected by the Indemnifying indemnifying party; provided, that such counsel is not reasonably objected to by the indemnified party; and provided further, that if either (i) any indemnified party reasonably concludes that there may be one or more legal defenses available to it that are different from or in addition to (and are inconsistent with) those available to the indemnifying party, or that a conflict or potential conflict exists between any indemnified party, on the one hand, and any indemnifying party, on the other hand (a “Conflicting Matter”), or (ii) the Third Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified PartyClaim seeks an order, injunction or other equitable relief or relief for other than money damages which the Indemnified Party seeks indemnification hereunderindemnified party reasonably concludes cannot be separated from any related claim for money damages (a “Specific Performance Matter”), the Indemnifying Party shall indemnifying party will not have the right to assume direct the defense of such claimaction on behalf of such indemnified party with respect to such Conflicting Matter or Specific Performance Matter, and the Indemnified Party indemnified party shall cooperate to direct the extent reasonably requested by defense of the Indemnifying Party in defense portion of such claim that constitutes a Conflicting Matter or prosecution thereof and shall furnish such recordsSpecific Performance Matter through counsel (including a local counsel, information and testimony and attend all such conferencesif necessary) of its choosing, discovery proceedings, hearings, trials and appeals as may be reasonably requested by at the Indemnifying Party in connection therewithexpense of the indemnified party. If Should the Indemnifying Party shall indemnifying party so elect to assume the defense of such claima Third Party Claim, the Indemnified Party indemnifying party shall not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel in any employed by the indemnifying party, it being understood that the indemnifying party shall control such casedefense. Notwithstanding the foregoing, but the indemnifying party shall be liable for the fees and expenses of such counsel employed by the indemnified party for any period during which the indemnifying party has failed to assume the defense thereof (other than during the period prior to the time the indemnified party shall be at the expense have given notice of the Indemnified PartyThird Party Claim as provided above). If the Indemnifying indemnifying party so elects to assume the defense of any Third Party has Claim, the indemnified party shall cooperate with the indemnifying party in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party’s request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of any claim against the Indemnified Partya Third Party Claim, the Indemnifying Party indemnified party shall have the right to settle not admit any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to takeliability with respect to, or prohibits the Indemnified settle, compromise or discharge, such Third Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim Claim without the indemnifying party’s prior written consent of the Indemnified Party, such (which consent shall not to be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not assume indemnifying party shall have assumed the defense of a third party claim and disputes the Indemnified Party’s right to indemnificationThird Party Claim, the Indemnified Party indemnified party shall have the right agree to assume control of the defense of such claim through counsel of its choice, the reasonable costs of which shall be at the Indemnifying Party’s expense in the event that the Indemnified Party’s right of indemnification is ultimately established through any settlement, compromise or other legal proceeding. In no circumstance 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, which releases the indemnifying party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party compromise or settle a claim with a third party for which it seeks indemnification from the Indemnifying Party without first obtaining the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed.

Defense of Third Party Claims. Upon receipt by In case an Action shall be brought, or such an Action is threatened, against any indemnitee and it shall notify promptly an indemnifying party of the Indemnifying Party of a notice from the Indemnified Party with respect to any claim of a third party against the Indemnified Party, for which the Indemnified Party seeks indemnification hereunderexistence thereof, the Indemnifying Party indemnifying party shall have be entitled to participate therein and, to the right extent that it may wish to assume the defense thereof, engage counsel satisfactory to such indemnitee. If the indemnifying party so assumes the defense thereof, it may not agree to any settlement of such claimAction as the result of which, and any remedy or relief, other than monetary damages for which the Indemnified Party indemnifying party shall cooperate be responsible hereunder, shall be applied to or against the indemnitee, without the prior written consent of the indemnitee. If the indemnifying party does not assume the defense thereof, it shall, to the extent reasonably requested that it has any indemnification obligations with respect thereto, be bound by any settlement to which the indemnitee agrees, irrespective of whether the indemnifying party consents thereto; provided, however, if any settlement of any claim is effected by the Indemnifying Party in defense or prosecution thereof and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith. If the Indemnifying Party shall elect indemnitee prior to assume the defense commencement of such claimany Action relating thereto, the Indemnified Party indemnifying party shall be bound thereby only if it has consented in writing thereto or has unreasonably withheld its consent. The indemnitee shall have the right to employ its own counsel in any such case, including circumstances in which the indemnitee shall have reasonably concluded that there may be defenses available to it that are different from or in addition to those available to the indemnifying party (in which case the indemnifying party shall not have the right to direct any such different or additional defense of such Action on behalf of the indemnitee, but the fees and expenses of such counsel shall be at the expense of such indemnitee unless the Indemnified Party. If employment of such counsel shall have been authorized in writing in advance by the Indemnifying Party has assumed indemnifying party in connection with the defense of any claim against such Action or the Indemnified Party, the Indemnifying Party shall have the right to settle any claim for which indemnification has been sought and is available hereunder; provided that, to the extent that such settlement requires the Indemnified Party to take, or prohibits the Indemnified Party from taking, any action or purports to obligate the Indemnified Party, then the Indemnifying Party indemnifying party shall not settle such claim without the prior written consent of the Indemnified Party, such consent not have employed counsel promptly to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of a third party claim and disputes the Indemnified Party’s right to indemnification, the Indemnified Party shall have the right to assume control take charge of the defense of such claim through counsel Action, in any of its choicewhich events such fees and expenses shall be borne by the indemnifying party). Except as expressly provided above, the reasonable indemnifying party shall not be liable to any indemnitee for the costs of which investigating, preparing or defending against such Action subsequent to such time as the indemnifying party assumes the defense of such Action, unless such investigation, preparation or defense shall be have been conducted at the Indemnifying Party’s expense in request of the indemnifying party, its counsel or the insurer. In the event that any Actions could result in both parties being liable to the Indemnified Party’s right other under these indemnification provisions, the parties shall endeavor, acting reasonably and in good faith, to agree upon a manner of indemnification is ultimately established through settlement, compromise or other legal proceeding. In no circumstance may conducting the Indemnified Party compromise or settle a claim defense and/or settlement of such Action with a third party for which it seeks indemnification from view to minimizing the Indemnifying Party without first obtaining legal expenses and associated costs that might otherwise be incurred by the prior written consent parties under the provisions of this Section 8.04. To the extent possible, the costs of such defense and/or settlement shall be allocated by the parties on the basis of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayedeventual determination of liability.