Common use of Defense of Third Person Claims Clause in Contracts

Defense of Third Person Claims. If an Injured Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an Indemnified Person hereunder) (a “Third Person”), the Injured Party shall give a Notice of Claim to the Indemnifying Party promptly after such assertion is actually known to the Injured Party; provided, however, that no delay or deficiency on the part of the Injured Party in delivering a Notice of Claim shall relieve the Indemnifying Party of any Liability hereunder unless (and solely to the extent) the Indemnifying Party is prejudiced by such delay, deficiency or failure. The Indemnifying Party shall have the right, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of Claim, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a “Third Person Claim”); provided that the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter without the prior written consent of the Injured Party (not to be withheld or delayed unreasonably), except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereof.

Defense of Third Person Claims. If (i) The Indemnifying Party shall have the right after receipt of the Litigation Notice to promptly notify the Claimant that it elects to undertake, conduct and assume control (through counsel of Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”); provided, the Injured Party shall give that as a Notice of Claim condition precedent to the Indemnifying Party’s right to assume control of such defense, the Indemnifying Party promptly after must first demonstrate to Claimant in writing reasonable evidence of the Indemnifying Party’s financial ability to assume control of such assertion is actually known to the Injured Partydefense of such third party claim; provided, howeverfurther, that no delay or deficiency on the part of the Injured Party in delivering a Notice of Claim shall relieve the Indemnifying Party shall not have the right to assume control of any Liability hereunder unless such defense and shall pay the fees and expenses of counsel retained by the Claimant (and solely to the extentextent required herein), if (1) the third party claim seeks an injunction or equitable relief, or relief for other than money damages against the Claimant that the Claimant reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, (2) the third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its affiliates or any of their respective Personnel, (3) the parties to any such third party claim or threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and the Indemnifying Party shall have been advised in writing by counsel for the Claimant that there exists legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Party and the Claimant, (4) the Indemnifying Party failed or is prejudiced by failing to use Reasonable Efforts to diligently prosecute or defend such delaythird party claim, deficiency or failure. The (5) the R&W Insurer has exercised a right to defend the third party claim under the R&W Policy. (ii) If the Indemnifying Party timely gives the foregoing Election Notice, the Indemnifying Party shall have the right, upon written notice subject to the Injured provisos contained in the first sentence of Section 6.1(g)(i), to undertake, conduct and assume control, at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceeding, and the Claimant shall reasonably cooperate with the Indemnifying Party within thirty in such Proceeding, including providing reasonable access to the Indemnifying Party to records and Personnel of the Company, as applicable; provided, however, (30A) days the Indemnifying Party shall conduct such Proceeding diligently and in good faith, (B) the Indemnifying Party shall permit the Claimant to participate in such Proceeding through legal counsel chosen by the Claimant, but the fees and expenses of receipt such legal counsel shall be borne solely by the Claimant (unless a conflict of interest exists between the Indemnifying Party and the Claimant, in which case the expense of one firm of Claimant’s legal counsel shall be borne by the Indemnifying Party), (C) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VI, for the full amount of any Loss incurred by the Notice Claimant, except fees and expenses of Claimlegal counsel to be borne by the Claimant pursuant to clause (B) above, and using counsel reasonably satisfactory (D) the Indemnifying Party shall have the right to the Injured Party, to investigate, secure, contest, pay or settle any such Proceeding provided the claim alleged Claimant has no Liability with respect to such settlement and the settlement does not impose injunctive or other equitable relief against the Claimant or encumber any of Claimant’s assets. (iii) The Indemnifying Party shall be liable for the reasonable out-of-pocket fees and expenses of counsel employed by such Third Person (a “Third Person Claim”); provided that the Claimant for any period during which the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to the matter assumed (or enter into any settlement with respect to the matter without the prior written consent of the Injured Party (is not to be withheld or delayed unreasonably), except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not controlassume) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party Proceeding with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense which an Indemnification Notice or a Litigation Notice has been issued by or on behalf of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofClaimant.

Defense of Third Person Claims. If an Injured Party is entitled The indemnifying party shall have the right to indemnification hereunder because conduct and control, through counsel of a claim asserted by any claimant (other than an Indemnified Person hereunder) (a “Third Person”)its own choosing, the Injured Party shall give a Notice of Claim reasonably acceptable to the Indemnifying Party promptly after such assertion is actually known to indemnified party, any third Person legal action or other claim, but the Injured Partyindemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that no delay if the indemnifying party shall fail to defend any such legal action or deficiency on other claim, then the part 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 twenty (20) days’ notice of the Injured Party in delivering a Notice of Claim shall relieve the Indemnifying Party of any Liability hereunder unless (and solely to the extent) the Indemnifying Party is prejudiced by such delay, deficiency or failure. The Indemnifying Party shall have the right, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party terms of the Notice 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 Claim, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, such settlement or settle the claim alleged by such Third Person (a “Third Person Claim”); provided that the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to and the matter reasonable costs and expenses of such defense. The indemnifying party shall not compromise or enter into settle any settlement with respect to the matter such legal action or other claim without the prior written consent of the Injured Party (indemnified party, which consent shall not to unreasonably be withheld withheld, delayed or delayed unreasonably), except that conditioned if the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent terms and conditions of the Injured Party if such judgment compromise or settlement requires only proposed by the payment of money. For indemnifying party and agreed to in writing by the avoidance of doubt, a claimant in such legal action or other claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not controlthe “Settlement Proposal”) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice include a full release of the same to indemnified party from the Indemnifying Party, on such terms as legal action or other claim which is the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent subject of the Indemnifying Party (not to be withheld or delayed unreasonably)Settlement Proposal, except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) if the Indemnifying Party may participate indemnified party is a Buyer Indemnified Party, do not include any term or condition which would restrict in (but not control) any material manner the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised continued ownership or operations of the status Subject Assets or the conduct of the Business in substantially the manner then being owned, operated and conducted by Buyer (or any such suit successor or proceeding assign). No matter whether an indemnifying party defends or prosecutes any third Person legal action or claim, the indemnified and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and indemnifying parties shall cooperate in the defense or prosecution thereof. 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 Person legal action or claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the indemnifying party shall reimburse the indemnified party for all its reasonable out-of-pocket expenses in connection therewith.

Defense of Third Person Claims. If an Injured Party is entitled indemnifying party receives a notice given in accordance with Section 9.3 with respect to indemnification hereunder because of a claim asserted by any claimant (other than an Indemnified third Person hereunder) (a “Third Person”)legal action or claim, the Injured Party indemnifying party shall give a Notice have the right to conduct and control, through counsel of Claim its own choosing, reasonably acceptable to the Indemnifying Party promptly after indemnified party, such assertion is actually known to third Person legal action or other claim, but the Injured Partyindemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that no delay if the indemnifying party shall fail to defend any such legal action or deficiency on other claim, then the part 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 Injured Party in delivering a Notice of Claim shall relieve the Indemnifying Party of any Liability hereunder unless (and solely to the extent) the Indemnifying Party is prejudiced by such delay, deficiency or failure. The Indemnifying Party shall have the right, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party terms of the Notice 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 Claim, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, such settlement or settle the claim alleged by such Third Person (a “Third Person Claim”); provided that the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to and the matter reasonable costs and expenses of such defense. The indemnifying party shall not compromise or enter into settle any settlement with respect to the matter such legal action or other claim without the prior written consent of the Injured Party (indemnified party, which consent shall not to unreasonably be withheld withheld, delayed or delayed unreasonably)conditioned; provided, except however, that consent shall not be required if the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent terms and conditions of the Injured Party if such judgment compromise or settlement requires only proposed by the payment of money. For indemnifying party and agreed to in writing by the avoidance of doubt, a claimant in such legal action or other claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not controlthe "Settlement Proposal") the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice include a full release of the same to indemnified party from the Indemnifying Party, on such terms as legal action or other claim which is the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent subject of the Indemnifying Party (not to be withheld or delayed unreasonably)Settlement Proposal, except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) do not impose on the Indemnifying Party may participate indemnified party any obligation or materially increase the indemnified party's risk of further proceedings, and (c) if the indemnified party is a Buyer Indemnified Party, do not include any term or condition which would restrict in (but not control) any material manner the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised continued ownership or operations of the status Subject Assets or the conduct of the Business as conducted by Seller prior to the Closing. No matter whether an indemnifying party defends or prosecutes any such suit third Person legal action or proceeding claim, the indemnified and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and indemnifying parties shall cooperate in the defense or prosecution thereof. 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 Person legal action or claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the indemnifying party shall reimburse the indemnified party for all of its reasonable out-of-pocket expenses in connection therewith.

Defense of Third Person Claims. If The Indemnifying Party shall have ten (10) calendar days after receipt of the Claim Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnifiable Losses set forth in the Claim Notice and that it elects to conduct and control any Proceeding with respect to an Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”), the Injured Party shall give a Notice of Claim to . If the Indemnifying Party promptly after gives a Disagreement Notice or does not give the foregoing Election Notice during such assertion is actually known 10-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the Injured Partyexercise of its reasonable discretion; provided, however, that no delay or deficiency on the part right of the Injured Party in delivering a Notice of Claim Claimant to indemnification hereunder shall relieve not be conclusively established thereby. If the Indemnifying Party of any Liability hereunder unless (timely gives the foregoing Election Notice and solely provides information satisfactory to the extent) Claimant in its reasonable discretion confirming the Indemnifying Party is prejudiced by Party’s financial capacity to defend such delayIndemnifiable Losses and provide indemnification with respect to such Indemnifiable Losses, deficiency or failure. The the Indemnifying Party shall have the rightright to undertake, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of Claimconduct and control, and using through counsel reasonably satisfactory to the Injured Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s sole expense, to investigatethe conduct and settlement of such Proceeding, secureincluding, contestbut limited to, or settle controlling all negotiations, litigation, arbitration, settlements, compromises and appeals of any claim, and the claim alleged by such Third Person (a “Third Person Claim”); provided that Claimant shall cooperate with the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claimconnection therewith; and provided further provided, however, that (a) the Indemnifying Party will shall not (i) thereby consent to the entry imposition of any judgment with respect to injunction against the matter or enter into any settlement with respect to the matter Claimant without the prior written consent of the Injured Claimant or (ii) agree to any settlement involving any Claimant that contains any element other than the payment of money and complete indemnification and an unconditional release of the Claimant without the prior written consent of the affected Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, (ii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, (iii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be withheld inappropriate due to the actual or delayed unreasonably)potential differing interests between them, or (iv) the Claimant has reasonably concluded (based upon advice of counsel to the Claimant) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the Indemnifying Party, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article III, for the full amount of any Indemnifiable Losses incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided Claimant has presented such settlement proposal to the Indemnifying Party and if the Indemnifying Party fails to respond to such proposal within the time frame requested, but in any event, within five Business Days of receipt of such proposal, the Indemnifying Party shall be deemed to have consented to such settlement proposal; provided however, that in the event of such payment or settlement which is not consented to or deemed to have been consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as Indemnifiable Losses under this Article III and (e) the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without settle such Proceeding with the consent of the Injured Party if Claimant provided that such judgment settlement (i) includes a provision unconditionally releasing the Claimant from all liability in respect of claims by any releasing party related to or settlement requires only arising out of any transactions or conduct in connection therewith and (ii) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any such Claimant. Notwithstanding anything herein to the payment of money. For contrary, the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Indemnifying Party shall not be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Third Person Claim with its own counsel at its own expenseProceeding, unless separate representation is, in and shall pay the reasonable opinion fees and expenses of counsel to retained by the Injured PartyClaimant, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), if (a) the Injured Party may defend against such claimProceeding relates to or arises in connection with any criminal proceeding, in such manner as it may deem appropriateaction, including settling such claimindictment, after giving written notice of the same to the Indemnifying Partyallegation or investigation, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party may participate has not elected to defend or is failing to defend in (but not control) good faith the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofProceeding.

Defense of Third Person Claims. If The Indemnifying Party shall have twenty (20) Business Days after receipt of the Litigation Notice to notify the Claimant in writing that it acknowledges its obligation to 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 Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”), the Injured Party shall give a Notice of Claim to . If the Indemnifying Party promptly after gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such assertion is actually known twenty (20) Business Day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the Injured Partyexercise of its reasonable discretion; provided, however, that no delay or deficiency on the part right of the Injured Party in delivering a Notice of Claim Claimant to indemnification hereunder shall relieve not be established thereby. If the Indemnifying Party of any Liability hereunder unless (timely gives the foregoing Election Notice and solely provides information satisfactory to the extent) Claimant in its reasonable discretion confirming the Indemnifying Party is prejudiced by Party’s financial capacity to defend, contest, settle or compromise such delayProceeding and provide indemnification with respect to such Indemnity Loss, deficiency or failure. The the Indemnifying Party shall have the rightright to undertake, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of Claimconduct and control, and using through counsel reasonably satisfactory to the Injured Claimant and at the Indemnifying Party’s sole expense, to investigate, securethe defense, contest, settlement or settle compromise of such Proceeding, and the claim alleged by such Third Person (a “Third Person Claim”); provided that Claimant shall cooperate with the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claimconnection therewith; and provided further provided, however, that (a) the Indemnifying Party will shall not thereby consent to the entry imposition of any judgment with respect to injunction against the matter or enter into any settlement with respect to the matter Claimant without the prior written consent of the Injured Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such defense, contest, settlement or compromise through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant, except as provided in clause (not c) below, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article 8, for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith (which fees and expenses shall be withheld or delayed unreasonablyborne by the Claimant), except and (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this Article 8. Notwithstanding any other provision of this Agreement to the contrary, if any Third Person Claim relating to the Assets or the Assumed Liabilities is brought or instituted and the Claimant gives a Litigation Notice to the Indemnifying Party with respect thereto, Claimant will have the sole and exclusive right to conduct and control such Third Person Claim in a commercially reasonable manner through counsel of its choosing. The Indemnifying Party will be entitled to participate in the Third Person Claim as described herein, provided that the Indemnifying Party shall be entitled acknowledges its obligation to consent indemnify the Claimant in accordance with the terms contained in Article 8 (including reasonable expenses of counsel and other reasonable expenses of the Third Person Claim) and it reimburses the Claimant for any amount paid to any judgment and/or enter into any settlement without the consent Governmental Entity in order to pursue a contest of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunderClaim. The Injured Indemnifying Party may thereafter participate in (but not control) will have the defense of any such Third Person Claim with its own counsel right to employ, at its own expense, unless separate representation iscounsel, such counsel to be reasonably satisfactory to the Claimant, in any such Proceeding and participate in its defence. Such participation will be strictly limited to being kept informed of the reasonable opinion status of the Third Person Claim by counsel to Purchaser, to reviewing any proposed written communications and other documents to be submitted to the Injured Partyrelevant Governmental Entity or filed with a court, advisable to avoid a conflict of interest arbitrator or a potential conflict of interest between the Injured Party and the Indemnifying Party, mediator in which case such representation shall be at the expense respect of the Indemnifying Party. If the Indemnifying Party elects not Third Person Claim and to defend the Injured Party with respect receiving copies of any correspondence received from any Governmental Entity, party to such Third Person Claim, the Injured Party shall have the rightcourt, at its option, arbitrator or mediator relating to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim, except that no compromise or settlement of any Third Person Claim (or fails claims relating to elect to assume the defense within Assets or the thirty (30) day period set forth in this Section 6.5), (a) Assumed Liabilities may be made by the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to Claimant without the Indemnifying Party’s consent, on such terms as the Injured Party which consent may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofunreasonably withheld.

Defense of Third Person Claims. If an Injured Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an Indemnified Person Injured Party hereunder) (a “Third Person”), the Injured Party shall give a Notice of Claim to the Indemnifying Party promptly after such assertion is actually known to the Injured Party; provided, however, that no delay or deficiency on the part of the Injured Party in delivering a Notice of Claim shall relieve the Indemnifying Party of any Liability hereunder unless (and solely to the extent) the Indemnifying Party is prejudiced by such delay, deficiency or failure. The Indemnifying Party shall have the right, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of ClaimParty, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a “Third Person Claim”); , provided that (i) the Indemnifying Party has notified the Injured Party in writing writing, within thirty (30) days after the Injured Party has given notice of its the Third Person Claim, of the Indemnifying Party’s election to indemnify the Injured Party with respect to such Third Person Claim and to assume the defense of such Third Person Claim, (ii) the Indemnifying Party provides the Injured Party with evidence reasonably acceptable to the Injured Party of its financial capacity to defend such Third Person Claim and fulfill its indemnification with respect to such Third Person Claim; (iii) the Third Person Claim involves only money damages that are not in excess of one hundred percent (100%) of the amount for which the Indemnifying Party may be liable under this Agreement and the Third Person Claim does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Person Claim is not, in the good faith judgment of the Injured Party, likely to establish a precedential custom or practice adverse to the continuing business interests of the Injured Party, and (v) the Indemnifying Party conducts the defense of the Third Person Claim actively and diligently; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter without the prior written consent of the Injured Party (not to be withheld or delayed unreasonably), except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money, does not constitute an admission of any wrongdoing or a waiver of any rights of the Injured Party, in the good faith judgment of the Injured Party, is not likely to establish a precedential custom or practice adverse to the continuing business interests of the Injured Party, and the Indemnifying Party is solely liable for the entire settlement amount. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority or Licensing Authority, including the IRS or the U.S. Department of Commerce, against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the (A) there is a reasonable opinion of counsel to the Injured Party, advisable to avoid likelihood that a conflict of interest or a potential conflict of interest exists between the Indemnifying Party and the Injured Party, (B) there are legal defenses available to the Injured Party and that are different from or additional to those available to the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If or (C) the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control the defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claimClaim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases , and such representation shall be at the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent expense of the Indemnifying Party (not to be withheld or delayed unreasonably)Party, except provided that the Injured Party shall be entitled not choose any counsel who is objectionable to consent the Indemnifying Party’s insurance company, if such company has agreed to any judgment and/or enter into any settlement without the consent provide coverage for such third party claim. The failure of the Indemnifying Party if such judgment or settlement does to respond in writing to the Notice of Claim within thirty (30) days after receipt thereof shall be deemed an election not require to defend the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expensesame. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereof, provided, however, that any confidential or privileged materials will not be disclosed by the Injured Party other than as needed for such defense, and the Indemnifying Party agrees to enter into a commercially reasonable confidentiality and non-use agreement with the Injured Party with respect to such information.

Defense of Third Person Claims. If The Indemnifying Party shall have ten (10) calendar days after receipt of the Claim Notice to notify the Claimant that it acknowledges its obligation to indemnify and hold harmless the Claimant with respect to the Indemnifiable Losses set forth in the Claim Notice and that it elects to conduct and control any Proceeding with respect to an Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”), the Injured Party shall give a Notice of Claim to . If the Indemnifying Party promptly after gives a Disagreement Notice or does not give the foregoing Election Notice during such assertion is actually known 10-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the Injured Partyexercise of its reasonable discretion; provided, however, that no delay or deficiency on the part right of the Injured Party in delivering a Notice of Claim Claimant to indemnification hereunder shall relieve not be conclusively established thereby. If the Indemnifying Party of any Liability hereunder unless (timely gives the foregoing Election Notice and solely provides information satisfactory to the extent) Claimant in its reasonable discretion confirming the Indemnifying Party is prejudiced by Party’s financial capacity to defend such delayIndemnifiable Losses and provide indemnification with respect to such Indemnifiable Losses, deficiency or failure. The the Indemnifying Party shall have the rightright to undertake, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of Claimconduct and control, and using through counsel reasonably satisfactory to the Injured Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s sole expense, to investigatethe conduct and settlement of such Proceeding, secureincluding, contestbut limited to, or settle controlling all negotiations, litigation, arbitration, settlements, compromises and appeals of any claim, and the claim alleged by such Third Person (a “Third Person Claim”); provided that Claimant shall cooperate with the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claimconnection therewith; and provided further provided, however, that (a) the Indemnifying Party will shall not (i) thereby consent to the entry imposition of any judgment with respect to injunction against the matter or enter into any settlement with respect to the matter Claimant without the prior written consent of the Injured Claimant or (ii) agree to any settlement involving any Claimant that contains any element other than the payment of money and complete indemnification and an unconditional release of the Claimant without the prior written consent of the affected Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, (ii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, (iii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be withheld inappropriate due to the actual or delayed unreasonably)potential differing interests between them, or (iv) the Claimant has reasonably concluded (based upon advice of counsel to the Claimant) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the Indemnifying Party, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article III, for the full amount of any Indemnifiable Losses incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided Claimant has presented such settlement proposal to the Indemnifying Party and if the Indemnifying Party fails to respond to such proposal within the time frame requested, but in any event, within five Business Days of receipt of such proposal, the Indemnifying Party shall be deemed to have consented to such settlement proposal; provided however, that in the event of such payment or settlement which is not consented to or deemed to have been consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as Indemnifiable Losses under this Article III and (e) the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without settle such Proceeding with the consent of the Injured Party if Claimant provided that such judgment settlement (i) includes a provision unconditionally releasing the Claimant from all liability in respect of claims by any releasing party related to or settlement requires only arising out of any transactions or conduct in connection therewith and (ii) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any such Claimant. Notwithstanding anything herein to the payment of money. For contrary, the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Indemnifying Party shall not be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) entitled to assume or maintain control of the defense of any such Third Person Claim with its own counsel at its own expenseProceeding, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment settle or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of compromise any such suit or proceeding and the defense thereof Proceeding, and shall make available to each other all relevant information in their possession relating to any such Third Person Claim pay the reasonable fees and shall cooperate in expenses of counsel retained by the defense thereof.Claimant, 33

Defense of Third Person Claims. If The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to 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 or assume the defense of any legal or administrative action or suit with respect to an Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”), the Injured Party shall give a Notice of Claim to . If the Indemnifying Party promptly after gives a Disagreement Notice or does not give the foregoing Election Notice during such assertion is actually known 20-day period, the Claimant shall have the right (but not the obligation) to the Injured Partydefend, contest, settle or compromise such Proceeding; provided, however, that no delay or deficiency on the part right of the Injured Party in delivering a Notice of Claim Claimant to indemnification hereunder shall relieve not be conclusively established thereby. If the Indemnifying Party of any Liability hereunder unless (timely gives the foregoing Election Notice and solely provides information satisfactory to the extent) Claimant in its reasonable discretion confirming the Indemnifying Party is prejudiced by Party’s financial capacity to defend such delayIndemnity Loss and provide indemnification with respect to such Indemnity Loss, deficiency or failure. The the Indemnifying Party shall have the rightright to undertake, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of Claimconduct and control, and using through counsel reasonably satisfactory to the Injured Claimant and at the Indemnifying Party’s sole expense, to investigatethe conduct and settlement of such action or suit, secure, contest, or settle and the claim alleged by such Third Person (Claimant shall cooperate in a “Third Person Claim”); provided that commercially reasonable manner with the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claimconnection therewith; and provided further provided, however, that (a) the Indemnifying Party will shall not consent to the entry of settle any judgment with respect to the matter or enter into any settlement with respect to the matter legal proceeding without the prior written consent of the Injured Party (not to be withheld or delayed unreasonably), except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any Claimant unless such settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require involves solely the payment of money and does not include any admission of wrongdoing or equitable relief, in which case the consent of the Claimant shall not be unreasonably withheld, (b) the Indemnifying Party may shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant, except as provided in clause (but not controlc) below, (c) upon a final determination of such action or suit, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article VIII, for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such action or suit by the Indemnifying Party in good faith (which fees and expenses shall be borne by the Claimant), and (d) the defense of such action, with its own counsel at its own expense. The Parties Claimant shall keep each other reasonably advised of have the status of right to pay or settle any such suit action or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofsuit.

Defense of Third Person Claims. If (i) The Indemnifying Party shall have 30 calendar days (or, to the extent possible, such shorter period as may be sufficient under the circumstances to give the Indemnifying Party a reasonable opportunity to respond) after receipt of the Litigation Notice to notify the Claimant that it elects to undertake, conduct and assume control (through counsel of Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”); provided¸ that, the Injured Party shall give as a Notice of Claim condition precedent to the Indemnifying Party’s right to assume control of such defense, the Indemnifying Party promptly after such assertion is actually known must (A) first demonstrate to Claimant in writing (1) reasonable evidence of the Indemnifying Party’s financial ability to provide indemnification to the Injured Partyextent provided hereunder to the Claimant with respect to such third party claim and (2) after giving effect to the application of the limitations in this ARTICLE VII, the Indemnifying Party would be responsible for a greater portion of the Losses related to such third party claim than the Claimant, and (B) agree to provide indemnification to the extent provided hereunder; provided, howeverfurther, that no delay or deficiency on the part of the Injured Party in delivering a Notice of Claim shall relieve the Indemnifying Party shall not have the right to assume control of any Liability hereunder unless such defense and shall pay the fees and expenses of counsel retained by the Claimant (and solely to the extentextent required herein), if (1) the third party claim seeks an injunction or equitable relief, or relief for other than money damages against the Claimant that the Claimant reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, (2) the third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its affiliates or any of their respective Personnel, (3) the parties to any such third party claim or threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and the Indemnifying Party shall have been advised in writing by counsel for the Claimant that there exists legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Party and the Claimant, (4) the Indemnifying Party failed or is prejudiced by failing to diligently prosecute or defend such delaythird party claim, deficiency or failure. The (5) the third party claim relates to or arises in connection with any environmental, health or safety conditions or matters. (ii) If the Indemnifying Party timely gives the foregoing Election Notice, the Indemnifying Party shall have the right, upon written notice subject to the Injured provisos contained in the first sentence of Section 7.1(g)(i), to undertake, conduct and assume control, at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceeding, and the Claimant shall reasonably cooperate with the Indemnifying Party within thirty in such Proceeding, including providing reasonable access to the Indemnifying Party to records and Personnel of the Company, as applicable; provided, however, (30A) days the Indemnifying Party shall conduct such Proceeding diligently and in good faith, (B) the Indemnifying Party shall permit the Claimant to participate in such Proceeding through legal counsel chosen by the Claimant, but the fees and expenses of receipt such legal counsel shall be borne solely by the Claimant (unless a conflict of interest exists between the Indemnifying Party and the Claimant, in which case the expense of Claimant’s legal counsel shall be borne by the Indemnifying Party), (C) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, for the full amount of any Loss incurred by the Notice Claimant, except fees and expenses of Claimlegal counsel to be borne by Claimant pursuant to (B) above, and using counsel reasonably satisfactory (D) the Indemnifying Party shall have the right to pay or settle any such Proceeding provided the Injured PartyClaimant has no Liability with respect to such settlement and the settlement does not impose injunctive or other equitable relief against the Claimant or encumber any of Claimant’s assets. (iii) If the Indemnifying Party gives a Disagreement Notice or does not give the foregoing Election Notice during such 30 day period or gives an Election Notice, but does not conduct the Proceeding diligently and in good faith, the Claimant shall have the right (but not the obligation) to investigate, securedefend, contest, settle or settle compromise such Proceeding in the claim alleged exercise of its reasonable discretion. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by such Third Person (a “Third Person Claim”); provided that the Claimant for any period during which the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to the matter assumed (or enter into any settlement with respect to the matter without the prior written consent of the Injured Party (is not to be withheld or delayed unreasonably), except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not controlassume) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party Proceeding with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense which an Indemnification Notice or a Litigation Notice has been issued by or on behalf of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofClaimant.

Defense of Third Person Claims. If an Injured Party is entitled The indemnifying party shall have the right to indemnification hereunder because conduct and control, through counsel of a claim asserted by any claimant (other than an Indemnified Person hereunder) (a “Third Person”)its own choosing, the Injured Party shall give a Notice of Claim reasonably acceptable to the Indemnifying Party promptly after such assertion is actually known to indemnified party, any third Person legal action or other claim, but the Injured Partyindemnified party may, at its election, participate in the defense thereof at its sole cost and expense; provided, however, that no delay if the indemnifying party shall fail to defend any such legal action or deficiency on other claim, then the part 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 Injured Party in delivering a Notice of Claim shall relieve the Indemnifying Party of any Liability hereunder unless (and solely to the extent) the Indemnifying Party is prejudiced by such delay, deficiency or failure. The Indemnifying Party shall have the right, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party terms of the Notice 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 Claim, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, such settlement or settle the claim alleged by such Third Person (a “Third Person Claim”); provided that the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to and the matter reasonable costs and expenses of such defense. The indemnifying party shall not compromise or enter into settle any settlement with respect to the matter such legal action or other claim without the prior written consent of the Injured Party (indemnified party, which consent shall not to unreasonably be withheld withheld, delayed or delayed unreasonably), except that conditioned if the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent terms and conditions of the Injured Party if such judgment compromise or settlement requires only proposed by the payment of money. For indemnifying party and agreed to in writing by the avoidance of doubt, a claimant in such legal action or other claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not controlthe “Settlement Proposal”) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice include a full release of the same to indemnified party from the Indemnifying Party, on such terms as legal action or other claim which is the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent subject of the Indemnifying Party (not to be withheld or delayed unreasonably)Settlement Proposal, except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) if the Indemnifying Party may participate indemnified party is a Buyer Indemnified Party, do not include any term or condition which would restrict in (but not control) any material manner the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised continued ownership or operations of the status Subject Contracts or the conduct of the Business in substantially the manner then being owned, operated and conducted by Buyer (or any such suit successor or proceeding assign). No matter whether an indemnifying party defends or prosecutes any third Person legal action or claim, the indemnified and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and indemnifying parties shall cooperate in the defense or prosecution thereof. 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 Person legal action or claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the indemnifying party shall reimburse the indemnified party for all its reasonable out-of-pocket expenses in connection therewith.

Defense of Third Person Claims. If The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to 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 legal or administrative action or suit with respect to an Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”), the Injured Party shall give a Notice of Claim to . If the Indemnifying Party promptly after gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such assertion is actually known 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the Injured Partyexercise of its reasonable discretion; provided, however, that no delay or deficiency on the part right of the Injured Party in delivering a Notice of Claim Claimant to indemnification hereunder shall relieve not be conclusively established thereby. If the Indemnifying Party of any Liability hereunder unless (timely gives the foregoing Election Notice and solely provides information satisfactory to the extent) Claimant in its reasonable discretion confirming the Indemnifying Party is prejudiced by Party’s financial capacity to defend such delayIndemnity Loss and provide indemnification with respect to such Indemnity Loss, deficiency or failure. The the Indemnifying Party shall have the rightright to undertake, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of Claimconduct and control, and using through counsel reasonably satisfactory to the Injured Claimant and at the Indemnifying Party’s sole expense, to investigatethe conduct and settlement of such action or suit, secure, contest, or settle and the claim alleged by such Third Person (a “Third Person Claim”); provided that Claimant shall cooperate with the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claimconnection therewith; and provided further provided, however, that (a) the Indemnifying Party will shall not thereby consent to the entry imposition of any judgment with respect to injunction against the matter or enter into any settlement with respect to the matter Claimant without the prior written consent of the Injured Party (not to be withheld or delayed unreasonably)Claimant, except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant, except as provided in clause (but not controlc) below, (c) upon a final determination of such action or suit, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article VII, for the full amount of any Indemnity Loss incurred by the Claimant, except for the fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such action or suit by the Indemnifying Party in good faith (which fees and expenses shall be borne by the Claimant), and (d) the defense Claimant shall have the right to pay or settle any such action or suit; provided, however, that in the event of such actionpayment or settlement, with its own counsel at its own expense. The Parties the Claimant shall keep each other reasonably advised of waive any right to indemnity therefor by the status of any such suit or proceeding Indemnifying Party and the defense no amount in respect thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofbe claimed as an Indemnity Loss under this Article VII.

Defense of Third Person Claims. If an Injured Party is entitled With respect to any claims or demands by third parties as to which Bionik, on the one hand, or the Stockholders, on the other, may seek indemnification hereunder because of a claim asserted by any claimant (other than an the party seeking indemnification being referred to herein as the “Indemnified Person hereunder) (a “Third PersonParty”), whenever the Injured Indemnified Party shall give will have received a Notice written notice that such a claim or demand has been asserted or threatened, the Indemnified Party will promptly notify the Stockholders’ Representative, if indemnification is being sought under Section 6.2, or Bionik, if indemnification is sought under Section 6.3 (such Person being referred to herein as the “Indemnifying Party”) of Claim to the Indemnifying Party promptly after such assertion is actually known to the Injured Party; provided, however, that no delay claim or deficiency on the part demand and of the Injured Party in delivering facts within the Indemnified Party’s knowledge that relate thereto within a Notice of Claim shall relieve the Indemnifying Party of any Liability hereunder unless (and solely to the extent) the Indemnifying Party is prejudiced by reasonable time after receiving such delay, deficiency or failurewritten notice. The Indemnifying Party shall will then have the rightright to defend, upon written notice contest, negotiate or settle any such claim or demand through counsel of his or its own selection (who shall be reasonably acceptable to the Injured Indemnified Party), at the Indemnifying Party’s own cost and expense, and the Indemnified Party within thirty (30) days of receipt by shall cooperate with and assist the Indemnifying Party in the defense of such claim or demand. Notwithstanding the Notice of Claimpreceding sentence, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a “Third Person Claim”); provided that the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent settle, compromise, or offer to the entry of settle or compromise any judgment with respect to the matter such claim or enter into any settlement with respect to the matter demand without the prior written consent of the Injured Party (not to be withheld or delayed unreasonably), except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Indemnified Party, advisable to avoid a conflict of interest which consent will not be unreasonably withheld, conditioned or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Partydelayed. If the Indemnifying Party elects not gives notice to defend the Injured Indemnified Party with respect to such Third Person Claim, within twenty Business Days after the Injured Indemnified Party shall have the right, at its option, to assume and control defense of the matter. If has notified the Indemnifying Party does not so elect that any such claim or demand has been made in writing, that the Indemnifying Party elects to indemnify have the Indemnified Party defend, contest, negotiate, or settle any such claim or demand, then the Indemnified Party will have the right to contest and/or settle any such claim or demand and assume the Indemnifying Party shall cooperate with and assist the Indemnified Party in the defense of any such Third Person Claim (claim or fails to elect to assume demand, provided, however, that the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Indemnified Party will not consent settle, compromise, or offer to the entry of a judgment settle or enter into compromise any settlement with respect to the matter such claim or demand without the prior written consent (which may include a general or limited consent) of the Indemnifying Party (Party, which consent will not to be withheld unreasonably withheld, conditioned or delayed unreasonably), except delayed. In the event that the Injured Party shall be entitled to consent Stockholders’ Representative has consented to any judgment and/or enter into settlement, the Stockholders shall have no power or authority to object under any settlement without provision of this Agreement to the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense amount of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofsettlement.

Defense of Third Person Claims. If (i) The Indemnifying Party shall have 30 calendar days after receipt of the Litigation Notice to notify the Claimant that it elects to undertake, conduct and assume control (through counsel of Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”); provided¸ that, the Injured Party shall give as a Notice of Claim condition precedent to the Indemnifying Party’s right to assume control of such defense, the Indemnifying Party promptly after such assertion is actually known must (A) first demonstrate to Claimant in writing (1) reasonable evidence of the Indemnifying Party’s financial ability to provide indemnification to the Injured Partyextent provided hereunder to the Claimant with respect to such third party claim and (2) after giving effect to the application of the limitations in this ARTICLE VI, the Indemnifying Party would be responsible for a greater portion of the Losses related to such third party claim than the Claimant, and (B) agree to provide indemnification to the extent provided hereunder; provided, further, that the Indemnifying Party shall not have the right to assume control of such defense and shall pay the fees and expenses of counsel retained by the Claimant (to the extent required herein), if (1) the third party claim seeks an injunction or equitable relief, or relief for other than money damages against the Claimant that the Claimant reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, (2) the third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its affiliates or any of their respective Personnel, (3) the parties to any such third party claim or threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and the Indemnifying Party shall have been advised in writing by counsel for the Claimant that there exists legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Party and the Claimant, (4) the Indemnifying Party failed or is failing to diligently prosecute or defend such third party claim, or (5) the third party claim relates to or arises in connection with any environmental, health or safety conditions or matters; provided, however, that no delay or deficiency on the part Claimant shall not settle any such third party claim without the prior written consent of the Injured Party in delivering a Notice of Claim Indemifying Party, which consent shall relieve not be unreasonably withheld, conditioned or delayed.. (ii) If the Indemnifying Party of any Liability hereunder unless (and solely to timely gives the extent) foregoing Election Notice, the Indemnifying Party is prejudiced by such delay, deficiency or failure. The Indemnifying Party shall have the right, upon written notice subject to the Injured provisos contained in the first sentence of Section 6.1(g)(i), to undertake, conduct and assume control, at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceeding, and the Claimant shall reasonably cooperate with the Indemnifying Party within thirty in such Proceeding, including providing reasonable access to the Indemnifying Party to records and Personnel of Seller, as applicable; provided, however, (30A) days the Indemnifying Party shall conduct such Proceeding diligently and in good faith, (B) the Indemnifying Party shall permit the Claimant to participate, but not control, in such Proceeding through legal counsel chosen by the Claimant, but the fees and expenses of receipt such legal counsel shall be borne solely by the Claimant (unless a conflict of interest exists between the Indemnifying Party and the Claimant, in which case the expense of Claimant’s legal counsel shall be borne by the Indemnifying Party), (C) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VI, for the full amount of any Loss incurred by the Notice Claimant, except fees and expenses of Claimlegal counsel to be borne by Claimant pursuant to (B) above, and using counsel reasonably satisfactory (D) the Indemnifying Party shall have the right to pay or settle any such Proceeding provided the Injured PartyClaimant has no Liability with respect to such settlement and the settlement does not impose injunctive or other equitable relief against the Claimant or encumber any of Claim’nt's assets. (iii) If the Indemnifying Party gives a Disagreement Notice or does not give the foregoing Election Notice during such 30 day period or gives an Election Notice, but does not conduct the Proceeding diligently and in good faith, the Claimant shall have the right (but not the obligation) to investigate, securedefend, contest, settle or settle compromise such Proceeding in the claim alleged exercise of its reasonable discretion. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by such Third Person (a “Third Person Claim”); provided that the Claimant for any period during which the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to the matter assumed (or enter into any settlement with respect to the matter without the prior written consent of the Injured Party (is not to be withheld or delayed unreasonably), except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not controlassume) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party Proceeding with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense which an Indemnification Notice or a Litigation Notice has been issued by or on behalf of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofClaimant.

Defense of Third Person Claims. If The Indemnifying Party shall have twenty (20) calendar days after receipt of the Litigation Notice to notify the Claimant that it acknowledges its obligation to 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 Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”), the Injured Party shall give a Notice of Claim to . If the Indemnifying Party promptly after gives a Disagreement Notice (as hereinafter defined) or does not give the foregoing Election Notice during such assertion is actually known 20-day period, the Claimant shall have the right (but not the obligation) to defend, contest, settle or compromise such Proceeding in the Injured Partyexercise of its reasonable discretion; provided, however, that no delay or deficiency on the part right of the Injured Party in delivering a Notice of Claim Claimant to indemnification hereunder shall relieve not be conclusively established thereby. If the Indemnifying Party of any Liability hereunder unless (timely gives the foregoing Election Notice and solely provides information satisfactory to the extent) Claimant in its reasonable discretion confirming the Indemnifying Party is prejudiced by Party’s financial capacity to defend such delayIndemnity Loss and provide indemnification with respect to such Indemnity Loss, deficiency or failure. The the Indemnifying Party shall have the rightright to undertake, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of Claimconduct and control, and using through counsel reasonably satisfactory to the Injured Claimant and, subject to the provisions set forth below, at the Indemnifying Party’s sole expense, to investigatethe conduct and settlement of such Proceeding, secure, contest, or settle and the claim alleged by such Third Person (a “Third Person Claim”); provided that Claimant shall cooperate with the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claimconnection therewith; and provided further provided, however, that (a) the Indemnifying Party will shall not thereby consent to the entry imposition of any judgment with respect to injunction against the matter or enter into any settlement with respect to the matter Claimant without the prior written consent of the Injured Claimant, (b) the Indemnifying Party shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant unless (not i) the Indemnifying Party shall have agreed in writing to the continuing participation of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Claimant and representation of both parties by the same counsel would, in the opinion of Claimant’s outside legal counsel, be withheld inappropriate due to the actual or delayed unreasonably)potential differing interests between them, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this ARTICLE VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith, (d) the Claimant shall have the right to pay or settle any such Proceeding; provided, however, that in the event of such payment or settlement which is not consented to by the Indemnifying Party, the Claimant shall waive any right to indemnity therefor by the Indemnifying Party and no amount in respect thereof shall be claimed as an Indemnity Loss under this ARTICLE VII and (e) the Indemnifying Party shall be entitled to settle such Proceeding with the consent of the Claimant, which will not be unreasonably withheld, conditioned or delayed or, if such settlement provides for release of the Claimant in connection with all matters relating to any judgment and/or enter into any settlement the Proceeding which have been asserted against the Claimant in such Proceeding by the other parties to such settlement, without the consent of the Injured Party if such judgment or settlement requires only Claimant. Notwithstanding anything herein to the payment of money. For contrary, the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Indemnifying Party shall not be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) entitled to assume or maintain control of the defense of any Proceeding, shall not be entitled to settle or compromise any such Third Person Claim with its own counsel at its own expenseProceeding, unless separate representation is, in and shall pay the reasonable opinion fees and expenses of counsel to retained by the Injured PartyClaimant, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), if (a) the Injured Party may defend against such claimProceeding relates to or arises in connection with any criminal proceeding, in such manner as it may deem appropriateaction, including settling such claimindictment, after giving written notice of the same to the Indemnifying Partyallegation or investigation, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Proceeding seeks injunctive or equitable relief against the Claimant, or (c) the Indemnifying Party may participate has not elected to defend or is failing to defend in (but not control) good faith the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofProceeding.

Defense of Third Person Claims. If an Injured Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an Indemnified Person hereunder) (a “Third Person”), the Injured The Indemnifying Party shall give a have twenty (20) calendar days after receipt of the Litigation Notice of Claim to notify the Claimant that it acknowledges its obligation to 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"). If the Indemnifying Party promptly after gives a Disagreement Notice or does not give the foregoing Election Notice during such assertion is actually known twenty (20) calendar day period, the Claimant shall have the right to defend, contest, settle or compromise such action or suit in the Injured Partyexercise of its sole discretion; provided, however, that no delay or deficiency on the part right of the Injured Party in delivering a Notice of Claim Claimant to indemnification hereunder shall relieve not be conclusively established thereby. If the Indemnifying Party of any Liability hereunder unless (gives the foregoing Election Notice and solely provides information satisfactory to the extent) Claimant in its sole discretion confirming the Indemnifying Party is prejudiced by Party's financial capacity to defend such delayIndemnity Loss and provide indemnification with respect to such Indemnity Loss, deficiency or failure. The the Indemnifying Party shall have the rightright to undertake, upon written notice conduct and control, through counsel satisfactory to the Injured Party within thirty (30) days Claimant and at the Indemnifying Party's sole expense, the conduct and settlement of receipt by such Proceeding, and the Claimant shall cooperate with the Indemnifying Party of the Notice of Claimin connection therewith; provided, and using counsel reasonably satisfactory to the Injured Partyhowever, to investigate, secure, contest, or settle the claim alleged by such Third Person that (a “Third Person Claim”); provided that a) the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will shall not thereby consent to the entry imposition of any judgment with respect to injunction against the matter or enter into any settlement with respect to the matter Claimant without the prior written consent of the Injured Party (not to be withheld or delayed unreasonably)Claimant, except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may shall permit the Claimant to participate in such conduct or settlement through legal counsel chosen by the Claimant, but the fees and expenses of such legal counsel shall be borne by the Claimant, except as provided in clause (but not controlc) below, (c) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article VII, for the full amount of any Indemnity Loss incurred by the Claimant, except fees and expenses of legal counsel that the Claimant incurred after the assumption of the conduct and control of such Proceeding by the Indemnifying Party in good faith and (d) the defense of such action, with its own counsel at its own expense. The Parties Claimant shall keep each other reasonably advised of have the status of right to pay or settle any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofProceeding.

Defense of Third Person Claims. If an Injured Party is entitled to indemnification hereunder because Except as may be otherwise provided in Section 8.8: (a) In the event of any Claim brought by, or asserted as a result of a claim asserted by any claimant (other than an Indemnified by, a third Person hereunder) (a “"Third Person”Party Claim"), the Injured Indemnified Party shall give a Notice of Claim to promptly notify the Indemnifying Party in writing of such Third Party Claim. Such written notice will include a description of (i) the representation, warranty, covenant or agreement with respect to which the Claim is being made (which may be subsequently revised by the Indemnified Party within a reasonable time of new or additional facts becoming known), (ii) the facts giving rise to the alleged basis for the Claim, to the extent known by the party seeking indemnification (which may be subsequently revised by the Indemnified Party within a reasonable time of new or additional facts becoming known), and (iii) the amount of the Loss being asserted against the Indemnifying Party by reason of the Claim, unless such amount is uncertain or contingent, in which event the Indemnified Party will also give a later written notice promptly after such assertion is actually known the amount becomes certain or fixed. The failure to promptly so notify the Injured Party; provided, however, that no delay or deficiency on the part Indemnifying Party of the Injured Third Party in delivering a Notice of Claim shall not relieve the Indemnifying Party of any Liability hereunder unless (and solely its obligations hereunder, except to the extentextent that such failure shall have materially and adversely prejudiced the Indemnifying Party. (b) Subject to the other terms of this Article VIII, the Indemnifying Party is prejudiced may by such delay, deficiency or failure. The Indemnifying Party shall have the right, upon written notice to the Injured Indemnified Party within thirty no later than fifteen (3015) calendar days after receiving written notice of receipt by a Third Party Claim from the Indemnifying Indemnified Party, elect to assume and control the defense (or settlement) of any Third Party Claim as provided herein, including the employment of the Notice of Claim, and using counsel reasonably satisfactory to the Injured Party, Indemnified Party and the payment of expenses related to investigate, secure, contest, or settle the claim alleged by such Third Person Party Claim (a “Third Person Claim”including expenses incurred prior to such election); provided that . (c) If the Indemnifying Party has notified elects to assume and control the Injured defense of a Third Party in writing of its election to indemnify Claim, then (i) the Injured Indemnified Party with respect to may only settle such Third Person Claim; and provided further that Party Claim with the Indemnifying Party will not consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter without the prior written consent of the Injured Party (Indemnifying Party, which consent will not to be unreasonably withheld or delayed unreasonably)delayed, except that (ii) the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement may settle such Third Party Claim without the consent of the Injured Indemnified Party only if (A) any monetary damages payable to any third party in respect of the Third Party Claim are paid by the Indemnifying Party, (B) the Indemnified Party receives a full, complete and unconditional release in respect of the Third Party Claim without any admission or finding of obligation, liability, fault or guilt (criminal or otherwise) with respect to the Third Party Claim, and (C) no injunctive, extraordinary, equitable or other relief of any kind is imposed on the Indemnified Party, and (iii) the Indemnifying Party may otherwise settle such judgment Third Party Claim only with the consent of the Indemnified Party, which consent will not unreasonably be withheld or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunderdelayed. The Injured Indemnified Party may thereafter employ separate counsel and participate in (but not control) the defense of any Third Party Claim, but the Indemnified Party will be responsible for the reasonable fees and expenses of such counsel unless (A) the Indemnifying Party has failed to assume, or if assumed, has failed to reasonably and actively defend such Third Person Party Claim as provided herein or to employ counsel reasonably satisfactory to the Indemnified Party with its own counsel at its own expenserespect thereto within the time period provided in Section 8.6(b), unless separate representation is, or (B) in the reasonable opinion of counsel to the Injured Party, advisable to avoid Indemnified Party (upon advice of counsel) a conflict of interest or a potential conflict of interest exists between the Injured interests of the Indemnified Party and the Indemnifying PartyParty that requires representation by separate counsel, in which case such representation shall the reasonable fees and expenses of one separate counsel to the Indemnified Party will be at the expense of paid by the Indemnifying Party. . (d) If the Indemnifying Indemnified Party elects not to defend the Injured settles any Third Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement with respect thereto without the consent of the Indemnifying Party if (unless such judgment consent is unreasonably withheld or settlement does not require delayed) and in violation of the payment terms of money and (b) this Section 8.6, the Indemnified Party shall thereafter have no claim against the Indemnifying Party may participate in (but not control) the defense of such action, under this Agreement with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating respect to any Loss occasioned by such Third Person Claim and shall cooperate in the defense thereofsettlement.

Defense of Third Person Claims. If an Injured Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an Indemnified indemnified Person hereunder) (a “Third Person”), the Injured Party shall give a Notice of Claim to the Indemnifying Party promptly within 30 days after such assertion is actually known to the Injured PartyParty by written notice; provided, however, that no delay or deficiency on the part right of the Injured Party a Person to be indemnified hereunder in delivering respect of claims made by a Third Person shall not be adversely affected by a failure to give such Notice of Claim shall relieve the Indemnifying Party of any Liability hereunder unless (unless, and solely then only to the extent) the extent that, an Indemnifying Party is prejudiced by such delay, deficiency or failurethereby. The Indemnifying Party shall have the right, upon written notice to the Injured Party within thirty (30) days of receipt by the Indemnifying Party of the Notice of ClaimParty, and using counsel reasonably satisfactory to the Injured Party, to investigate, secure, contest, or settle the claim alleged by such Third Person (a “Third Person Claim”); ) provided that the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to the matter or enter into any settlement with respect to the matter without the prior written consent of the Injured Party (not to be withheld or delayed unreasonably), ) except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of moneymoney (without admitting fault) and effective upon the payment by the Indemnifying Party of all such money due. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority governmental agency, including without limitation the IRS, the U.S. Department of Commerce or the U.S. Treasury Department, against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, except in the reasonable opinion event of counsel to a conflict of interest, where the Indemnified Party can control and the Indemnifying Party must reimburse. For purposes of clarification, the fact that the Injured Party, advisable to avoid Party has sought indemnification from the Indemnified Party shall not be considered in determining whether a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Partyexists. If the Indemnifying Party elects not to defend the Injured Party with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereof.the

Defense of Third Person Claims. If (a) The Indemnifying Party shall have 30 calendar days (or, to the extent possible, such shorter period as may be sufficient under the circumstances to give the Indemnifying Party a reasonable opportunity to respond) after receipt of the Litigation Notice to notify the Claimant that it elects to undertake, conduct and assume control (through counsel of Indemnifying Party’s choice reasonably acceptable to Claimant) any Proceeding instituted by a third party with respect to an Injured Party is entitled to indemnification hereunder because of a identifiable claim asserted by any claimant (other than an Indemnified Person hereunder) (a the “Third PersonElection Notice”); provided¸ that, the Injured Party shall give as a Notice of Claim condition precedent to the Indemnifying Party’s right to assume control of such defense, the Indemnifying Party promptly after such assertion is actually known must (A) first demonstrate to Claimant in writing (1) reasonable evidence of the Indemnifying Party’s financial ability to provide indemnification to the Injured Partyextent provided hereunder to the Claimant with respect to such third party claim and (2) after giving effect to the application of the limitations in this Article 9, the Indemnifying Party would be responsible for a greater portion of the Losses related to such third party claim than the Claimant, and (B) agree to provide indemnification to the extent provided hereunder; provided, howeverfurther, that no delay or deficiency on the part of the Injured Party in delivering a Notice of Claim shall relieve the Indemnifying Party shall not have the right to assume control of any Liability hereunder unless such defense and shall pay the fees and expenses of counsel retained by the Claimant (and solely to the extentextent required herein), if (1) the third party claim seeks an injunction or equitable relief, or relief for other than money damages against the Claimant that the Claimant reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, (2) the third party claim involves criminal proceeding, action, indictment, allegation or investigation that could reasonably be expected to involve incarceration of Claimant, any of its Affiliates or any of their respective Personnel, (3) the parties to any such third party claim or threatened third party claim (including any impleaded parties) include both the Indemnifying Party and the Claimant and the Indemnifying Party shall have been advised in writing by counsel for the Claimant that there exists legal conflicts of interest pursuant to applicable rules of professional conduct between the Indemnifying Party and the Claimant, (4) the Indemnifying Party failed or is prejudiced by failing to diligently prosecute or defend such delaythird party claim, deficiency or failure. The (5) the third party claim relates to or arises in connection with any environmental, health or safety conditions or matters. (b) If the Indemnifying Party timely gives the foregoing Election Notice, the Indemnifying Party shall have the right, upon written notice subject to the Injured provisos contained in the first sentence of Section 9.6(a), to undertake, conduct and assume control, at the Indemnifying Party’s sole expense, the conduct and settlement of such Proceeding, and the Claimant shall reasonably cooperate with the Indemnifying Party within thirty in such Proceeding, including providing reasonable access to the Indemnifying Party to records and Personnel of IFP, as applicable; provided, however, (30A) days the Indemnifying Party shall conduct such Proceeding diligently and in good faith, (B) the Indemnifying Party shall permit the Claimant to participate in such Proceeding through legal counsel chosen by the Claimant, but the fees and expenses of receipt such legal counsel shall be borne solely by the Claimant (unless a conflict of interest exists between the Indemnifying Party and the Claimant, in which case the expense of Claimant’s legal counsel shall be borne by the Indemnifying Party), (C) upon a final determination of such Proceeding, the Indemnifying Party shall promptly reimburse the Claimant, to the extent required under this Article 9, for the full amount of any Loss incurred by the Notice Claimant, except fees and expenses of Claimlegal counsel to be borne by Claimant pursuant to (B) above, and using counsel reasonably satisfactory (D) the Indemnifying Party shall have the right to pay or settle any such Proceeding provided the Injured PartyClaimant has no Liability with respect to such settlement and the settlement does not impose injunctive or other equitable relief against the Claimant or encumber any of Claimant’s assets. (c) If the Indemnifying Party gives a Disagreement Notice or does not give the foregoing Election Notice during such 30-day period or gives an Election Notice, but does not conduct the Proceeding diligently and in good faith, the Claimant shall have the right (but not the obligation) to investigate, securedefend, contest, settle or settle compromise such Proceeding in the claim alleged exercise of its reasonable discretion. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by such Third Person (a “Third Person Claim”); provided that the Claimant for any period during which the Indemnifying Party has notified the Injured Party in writing of its election to indemnify the Injured Party with respect to such Third Person Claim; and provided further that the Indemnifying Party will not consent to the entry of any judgment with respect to the matter assumed (or enter into any settlement with respect to the matter without the prior written consent of the Injured Party (is not to be withheld or delayed unreasonably), except that the Indemnifying Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Injured Party if such judgment or settlement requires only the payment of money. For the avoidance of doubt, a claim or challenge asserted by a Governmental Authority against an Injured Party shall be considered a Third Person Claim hereunder. The Injured Party may thereafter participate in (but not controlassume) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is, in the reasonable opinion of counsel to the Injured Party, advisable to avoid a conflict of interest or a potential conflict of interest between the Injured Party and the Indemnifying Party, in which case such representation shall be at the expense of the Indemnifying Party. If the Indemnifying Party elects not to defend the Injured Party Proceeding with respect to such Third Person Claim, the Injured Party shall have the right, at its option, to assume and control defense which an Indemnification Notice or a Litigation Notice has been issued by or on behalf of the matter. If the Indemnifying Party does not so elect to indemnify and assume the defense of any such Third Person Claim (or fails to elect to assume the defense within the thirty (30) day period set forth in this Section 6.5), (a) the Injured Party may defend against such claim, in such manner as it may deem appropriate, including settling such claim, after giving written notice of the same to the Indemnifying Party, on such terms as the Injured Party may deem appropriate; provided that in all cases the Injured Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the prior written consent of the Indemnifying Party (not to be withheld or delayed unreasonably), except that the Injured Party shall be entitled to consent to any judgment and/or enter into any settlement without the consent of the Indemnifying Party if such judgment or settlement does not require the payment of money and (b) the Indemnifying Party may participate in (but not control) the defense of such action, with its own counsel at its own expense. The Parties shall keep each other reasonably advised of the status of any such suit or proceeding and the defense thereof and shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereofClaimant.