Common use of Defense Clause in Contracts

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party.

Defense. If Unless the facts Parties otherwise agree, a Party shall assume the primary responsibility for the conduct of the defense of any such claim relating to such Party’s Product, at such Party’s sole expense, and with legal counsel of its choice. The other Party shall have the right, but not the obligation, to participate and be independently represented in any such suit at its sole option and at its own expense. Each Party shall reasonably cooperate with the Party conducting the defense of the claim. Each Party shall keep the other Party hereto reasonably informed of all material developments in connection with any such claim, suit or proceeding, and the Parties shall reasonably cooperate in conducting the defense of any such claim. Should Lilly decide not to defend or fail to defend any such claim, suit, or proceedings by a Third Party relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue Lilly Target within thirty (30) days of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect suit, or proceeding, then NextCure will be entitled to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partytake over, at its option, the right to defend such infringement proceedings and the control of any such defense, at NextCure’s cost and expenseshould NextCure decide not to defend or fail to defend any such claim, suit, or proceedings by a Third Party relating to a NextCure Target within thirty (30) days of notice of such claim, suit, or proceeding, then Lilly will be entitled to take over, at its option, the right to defend such infringement proceedings and the control of any such defense; provided, however, that during that, the interim Parties shall refer to the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss JPC any strategy dispute between the Parties with respect to defense of such claim, suit or proceeding for good faith discussion and resolution, and, in the Loss. The Indemnified Party event that the JPC cannot resolve such strategy, (a) NextCure shall not have the right to employ counsel separate from counsel employed by the Indemnity Obligor defend such infringement relating to a Lilly Target, Lilly Compound and/or Lilly Product if, in any Lilly’s sole discretion, Lilly (subsequent to such action JPC referral) determines such defense should not be made as a matter of strategy and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to Lilly shall not have the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses right to defend or prosecute such claiminfringement relating to a NextCure Target, all the parties hereto shall cooperate NextCure Compound and/or NextCure Product if, in the NextCure’s sole discretion, NextCure (subsequent to such JPC referral) determines such defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall should not be liable for made as a matter of strategy. Neither Party shall enter into any settlement that affects any of any the other Party’s rights or interests without such claim effected without its other Party’s prior written consent. In the event of payment by the Indemnity Obligor , not to the Indemnified Party in connection with any Loss arising out of a Third Party Claimbe unreasonably withheld, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events conditioned or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partydelayed.

Defense. Promptly after receipt by an Indemnified Person of notice of any claim or demand or the commencement of any action or proceeding with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify the Indemnitor of such claim or demand or the commencement of such action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnitor shall so elect, the Indemnity Obligor may, by giving written notice to Indemnitor shall assume the Indemnified Party within 15 days following its receipt of the notice defense of such claim, elect to assume the defense demand, action or the prosecution thereofproceeding, including the employment of counsel or accountants, reasonably satisfactory to such Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified PartyPerson shall reasonably determine that having common counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, at its cost demand, action or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action or proceeding and expensethe Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that during the interim Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single or related action or proceeding. For any claim, demand, action or proceeding the defense of which the Indemnitor shall assume, the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party Person shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action participate therein and to participate therein, but the fees and expenses of retain its own counsel at such counsel shall be at the Indemnified PartyPerson's own expenseexpense (except as otherwise specifically provided in this Section 6.4), unless (a) so long as such participation shall not interfere with the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment Indemnitor's control of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense demand, action or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithproceeding. The Indemnity Obligor Indemnitor shall not be liable for any settlement of any such claim effected not, without its the prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place consent of the Indemnified Party as Person, settle or compromise or consent to the entry of any events judgment in any pending or circumstances threatened claim, action, suit or proceeding in respect of which the indemnification may be sought hereunder unless such settlement, compromise or consent shall include an unconditional release of such Indemnified Party may have any right Person from all liability arising out of such claim, demand, action or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyproceeding.

Defense. If the facts relating The Indemnifying Party shall be entitled to a Loss arise out a Third Party Claimparticipate in and, or if there is any claim against a third party available by virtue of the circumstances of the Lossit so desires, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of an Action with counsel or accountants, reasonably satisfactory to the Indemnified PartyIndemnitee. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense of an Action, at its cost and expense; provided, however, that during the interim the Indemnified Indemnifying Party shall use its best efforts to take all action (is not including settlement) reasonably necessary to protect against further damage or loss with respect liable to the LossIndemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than reasonable costs of investigation. The Indemnified Party However, the Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinin the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless separate counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) shall not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; or (iv) the Indemnifying Party authorizes the Indemnitee to employ separate counsel at the Indemnifying Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party's expense.

Defense. If Subject to the facts relating limitations set forth in this Section 10.6(b), the Indemnifying Party shall have the right to a Loss arise out a elect to conduct and control the defense, compromise or settlement of any Third Party Claim, or if there is any claim against a third party available by virtue Claim with counsel of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice its choice reasonably acceptable to the Indemnified Party within 15 days following its receipt of and at the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Indemnifying Party, at its ’s sole cost and expense; provided, however, that during the interim Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (i) the Indemnifying Party shall not have given written notice (A) of its election to conduct and control the defense of the Third Party Claim and (B) that the Indemnifying Party agrees, on behalf of all Indemnifying Parties, that the Third Party Claim is indemnifiable hereunder within thirty (30) days after the Indemnified Party has given notice thereof, (ii) the Indemnified Party shall reasonably determine in good faith, after consultation with its outside counsel, that use its best efforts of counsel selected by the Indemnifying Party to take all action represent the Indemnified Party would present such counsel with a conflict of interest or that the Indemnified Party has material defenses or counterclaims available to it that are not available to the Indemnifying Party (and that cannot including settlementbe utilized by the Indemnifying Party on behalf of the Indemnified Party), (iii) the Indemnified Party is not reasonably necessary to protect against further damage or loss diligently defending such Third Party Claim, (iv) solely with respect to any indemnification claim pursuant to Section 10.2(a) or Section 10.3(a) (other than with respect to a breach of a Fundamental Representation), the Loss. The Losses sought and reasonably likely to be suffered or incurred in such Third Party Claim are reasonably expected to be more than two times the amount that the Indemnifying Party is potentially liable for with respect to such Third Party Claim taking into account Section 10.4(b) or (v) the Third Party Claim is for injunctive relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to employ counsel separate from counsel employed by control the Indemnity Obligor defense, compromise or settlement of the Third Party Claim at the Indemnifying Party’s sole cost and expense, not to exceed one law firm in the United States and one firm in any such action and to participate thereinforeign jurisdiction, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyif applicable.

Defense. If Upon receipt of notice under Subsection (a) from the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnitee, the Indemnity Obligor mayIndemnifying Party will have the duty to either compromise or defend, at its own expense and by giving written notice counsel (reasonably satisfactory to the Indemnified Indemnitee), such Action. The Indemnifying Party within 15 will promptly (and in any event not more than twenty (20) days following its after receipt of the notice of such claim, elect Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to assume indemnify the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss Indemnitee with respect to the LossAction pursuant to this Article 8 and of its intention to either compromise or defend such Action. The Indemnified Once the Indemnifying Party shall gives such notice to the Indemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee will have the right to employ separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereincontrol the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) will not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party. Whether Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or not the Indemnity Obligor chooses fails to timely admit its obligation to defend or prosecute such claim, all and indemnify the parties hereto shall cooperate Action; or (v) in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement reasonable opinion of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor counsel to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimIndemnitee, the Indemnity Obligor shall be subrogated to and shall stand claim could result in the place Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnified Indemnitee; provided, however, that in no event shall the Indemnifying Party as be obligated to any events or circumstances in respect bear the fees, costs and expenses of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent more than one (1) separate counsel for all of the Indemnified other Party's Indemnitees in such Action.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is In connection with any claim against giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third person who is not a party available by virtue of to the circumstances of the LossAgreement, the Indemnity Obligor Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, by giving upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (a) the Indemnifying Party acknowledges to the Indemnified Party in writing, within 15 fifteen days following its after receipt of notice from the notice Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, elect (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to assume the defense Indemnified Party that the Indemnifying Party will have the financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the prosecution thereofthird-party claim is not, including in the employment good faith judgment of counsel or accountants, reasonably satisfactory to the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its cost and own expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that if there may be are one or more legal defenses available to it which are different from or additional to the Indemnified Party that conflict with those available to the Indemnity Obligor and in Indemnifying Party, or if the Indemnifying Party fails to take reasonable judgment of such counsel it is advisable for such steps necessary to diligently defend the claim after receiving notice from the Indemnified Party to employ separate counsel, or (c) that it believes the Indemnity Obligor Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld, conditioned or delayed provided the Indemnified Party receives a full and complete release. Whether or If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the Indemnity Obligor chooses to defend or prosecute defense of such claim, all with its counsel and at its own expense. If the parties hereto shall cooperate Indemnifying Party thereafter seeks to question the manner in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have defended such third-party claim or the amount or nature of any right or claim against such third party relating to such indemnified matter. The Indemnified settlement, the Indemnifying Party shall cooperate with have the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim burden to prove by a preponderance of the evidence that would adversely affect the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other in order to insure the consent proper and adequate defense of the Indemnified Partyany action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. If the facts relating pertaining to a Loss loss arise out a Third Party Claimof the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to “Indemnifying Party” may assume the defense or the prosecution thereofthereof by prompt written notice to the Indemnified Party, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party shall be at their expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle such claim without the Indemnifying Party’s consent. The Indemnifying Party shall not agree to a settlement of any claim which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of any Indemnified Party without the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party’s prior written consent. Whether or not the Indemnity Obligor Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony testimony, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Indemnifying Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to all rights and shall stand in the place remedies of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Indemnifying Party.

Defense. If the facts relating to a Loss arise out a Third Party Claimany claim, demand or if there liability is asserted by any claim against a third party available by virtue of the circumstances of the Lossagainst any Indemnified Party, the Indemnity Obligor mayIndemnifying Party shall be entitled to participate therein and defend any action or proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity, and the Indemnifying Party shall have the right to conduct and control the defense subject to the Indemnified Party’s approval in writing of outside counsel selected by giving written the Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party within 15 days following of its receipt of the notice of such claim, elect election to assume the defense of such claim or action, the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory Indemnifying Party shall not be liable to the Indemnified Party, at its cost and expense; provided, however, that during the interim Party under this Section 11.3 for any reasonable legal or other expenses subsequently incurred by the Indemnified Party shall use its best efforts to take all in connection with the defense thereof other than reasonable costs of investigation. In any action (not including settlement) reasonably necessary to protect against further damage or loss with respect to defended by the Loss. The Indemnifying Party the Indemnified Party shall have the right to employ be represented by its own counsel separate from counsel employed by at its own expense unless (1) the Indemnity Obligor in any such action and to participate therein, but the fees and expenses employment of such counsel shall be at have been authorized in writing by the Indemnified Indemnifying Party's own expense, unless ; or (a2) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) Indemnifying Party shall not have properly employed counsel reasonably satisfactory to such Indemnified Party has to have charge of the defense of such action; in each of such cases such fees and expenses shall be paid and advanced by the Indemnifying Party. In addition, if the named parties to any such action, suit or proceeding (including any impleaded parties) shall include both such Indemnified Party and Indemnifying Party, and such Indemnified Party shall have been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from from, or additional to to, those available to the Indemnity Obligor Indemnifying Party, and in the reasonable judgment of such counsel it is advisable for if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counselcounsel at the expense of the Indemnifying Party, or (c) the Indemnity Obligor has failed Indemnifying Party shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnified Party, and the Indemnified Party may participate in the defense of such action, suit or proceeding and such fees and expenses shall be paid and advanced by the Indemnifying Party; it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and employ expenses of more than one separate firm of attorneys (in addition to any local counsel reasonably satisfactory for all such Indemnified Party). The Indemnifying Party will not, without Indemnified Party’s written consent, settle or compromise any indemnifiable claim or consent to the entry of any judgment in respect thereof unless such settlement, compromise or consent includes an unconditional release of the Indemnified PartyParty from all liability in respect of such indemnifiable claim. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the The parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such all third party relating claims which may give rise to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyindemnifiable claims hereunder.

Defense. If Upon receipt of notice under Subsection (a) from the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnitee, the Indemnity Obligor mayIndemnifying Party will have the duty to either to compromise or defend, at its own expense and by giving written notice counsel (reasonably satisfactory to the Indemnified Indemnitee), such Action. The Indemnifying Party within 15 will promptly (and in any event not more than twenty (20) days following its after receipt of the notice Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such claim, elect Action. Once the Indemnifying Party notifies the Indemnitee of its election to assume the defense or of an Action, the prosecution thereof, including Indemnifying Party is not liable to the employment Indemnitee for the fees of other counsel or accountantsany other expenses subsequently incurred by the Indemnitee in connection with such defense, reasonably satisfactory to other than the Indemnified PartyIndemnitee's reasonable costs of investigation and cooperation. However, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party Indemnitee shall have the right to employ separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinin the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) shall not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party. Whether Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or not the Indemnity Obligor chooses fails to timely admit its obligation to defend or prosecute such claim, all and indemnify the parties hereto shall cooperate Action; or (v) in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement reasonable opinion of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor counsel to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimIndemnitee, the Indemnity Obligor shall be subrogated to and shall stand claim could result in the place Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified PartyIndemnitee.

Defense. If The Indemnifying Party will have the facts relating right to a Loss arise out a participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, or if there is jointly with any claim against a third party available by virtue of the circumstances of the Lossother Indemnifying Party similarly notified, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the prosecution thereof, including defense of the employment of counsel or accountants, reasonably satisfactory action and after notice from the Indemnifying Party to the Indemnified PartyIndemnitee of its election to assume the defense, at its cost and expense; provided, however, that during the interim the Indemnified Indemnifying Party shall use its best efforts to take all action (will not including settlement) reasonably necessary to protect against further damage or loss with respect be liable to the LossIndemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnified Party shall Indemnitee will have the right to employ its own counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinaction, but the fees fees, expenses and expenses other charges of such counsel shall will be at the Indemnified Party's own expense, expense of such Indemnitee unless (a1) the employment thereof of counsel by the Indemnitee has been specifically authorized in writing by the Indemnity ObligorIndemnifying Party, (b2) such Indemnified Party the Indemnitee has been advised by counsel reasonably satisfactory to the Indemnity Obligor concluded (based on advice of counsel) that there may be one or more legal defenses available to it which or other Indemnitees that are different from or additional in addition to those available to the Indemnity Obligor Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the reasonable judgment Indemnifying Party will not have the right to direct the defense of such counsel it is advisable for such Indemnified Party to employ separate counsel, action on behalf of the Indemnitee) or (c4) the Indemnity Obligor Indemnifying Party has failed 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, in each of which cases the reasonable fees, disbursements and employ other charges of counsel reasonably satisfactory to will be at the Indemnified Partyexpense of the Indemnifying Party or Parties. Whether It is understood that the Indemnifying Party or not the Indemnity Obligor chooses to defend Parties shall not, in connection with any proceeding or prosecute such claim, all the parties hereto shall cooperate related proceedings in the defense same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or prosecution thereof parties. All such fees, disbursements and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial other charges will be reimbursed by the Indemnifying Party promptly as may be reasonably requested in connection therewiththey are incurred. The Indemnity Obligor shall An Indemnifying Party will not be liable for any settlement of any such action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent. In the event consent of payment by the Indemnity Obligor each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party in connection with any Loss is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of a Third Party Claimsuch claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events action or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyproceeding.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is In connection with any claim against giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a third person who is not a party available by virtue of to the circumstances of the LossAgreement, the Indemnity Obligor Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, by giving upon written notice to the Indemnified Party within 15 days following its receipt of the notice of such claimParty, elect to assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the prosecution thereofclaim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, including the employment of with its counsel or accountants, reasonably satisfactory to the Indemnified Party, and at its cost and own expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that if there may be are one or more legal defenses available to it which are different from or additional to the Indemnified Party that conflict with those available to the Indemnity Obligor and in Indemnifying Party, or if the Indemnifying Party fails to take reasonable judgment of such counsel it is advisable for such steps necessary to diligently defend the claim after receiving notice from the Indemnified Party to employ separate counsel, or (c) that it believes the Indemnity Obligor Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such action and employ counsel reasonably satisfactory to claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. Whether or If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the Indemnity Obligor chooses to defend or prosecute defense of such claim, all with its counsel and at its own expense. If the parties hereto shall cooperate Indemnifying Party thereafter seeks to question the manner in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have defended such third-party claim or the amount or nature of any right or claim against such third party relating to such indemnified matter. The Indemnified settlement, the Indemnifying Party shall cooperate with have the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim burden to prove by a preponderance of the evidence that would adversely affect the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the consent proper and adequate defense of the Indemnified Partyany action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. If Subject to the facts relating to a Loss arise out limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, or if there is any claim against a third party available the Indemnifying Party shall have the right (exercisable by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 ten (10) days following its receipt after the Indemnified Party has given a Claim Notice of the notice of such claim, Third Party Claim) to elect to assume conduct and control, through counsel of its choosing and at the defense Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the prosecution thereofThird Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, including if the employment of counsel or accountantssame is adversely determined, reasonably satisfactory the Indemnifying Party shall provide indemnification to the Indemnified Party, at its cost and expenseParty in respect thereof; provided, however, that during the interim Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use its best efforts of counsel selected by the Indemnifying Party to take all action represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (not including settlementD) reasonably necessary to protect the Third Party Claim is for injunctive, equitable or other non-monetary relief against further damage or loss with respect to the Loss. The Indemnified Party, then in each such case the Indemnified Party shall have the right to employ control the defense, compromise or settlement of the Third Party Claim with counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be its choice at the Indemnified Indemnifying Party's own ’s sole cost and expense. In connection with any Third Party Claim, unless (a) from and after delivery of a Claim Notice, the employment thereof has been specifically authorized by Indemnifying Party and the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor shall, and shall cause their respective Affiliates and representatives to, cooperate fully in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in connection with the defense or prosecution thereof and shall furnish of such Third Party Claim, including furnishing such records, information and testimony and shall attend attending such conferences, discovery proceedings proceedings, hearings, trials and trial appeals as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to Indemnifying Party or the Indemnified Party in connection with therewith. In addition, the party controlling the defense of any Loss arising out of a Third Party Claim, Claim shall keep the Indemnity Obligor shall be subrogated to non-controlling party advised of the status thereof and shall stand consider in good faith any recommendations made by the place of the Indemnified Party as to any events or circumstances in non-controlling party with respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partythereto.

Defense. If Other than with respect to Taxes, as to which Section 8.3 controls to the facts relating to a Loss arise out a Third Party Claimextent inconsistent with this Section, if any claim, demand or if there liability is asserted by any claim against a third party available by virtue of the circumstances of the Lossagainst any Indemnified Party, the Indemnity Obligor may, by giving Indemnifying Party shall upon the written notice to request of the Indemnified Party within 15 days following its receipt defend any actions or proceedings brought against the Indemnified Party in respect of matters embraced by the notice of such claim, elect indemnity. The Indemnifying Party shall have the right to assume control the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expenseany Indemnifiable Claim; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by control the Indemnity Obligor in defense of a claim under either of the following circumstances: (i) the Indemnifying Party fails to assume the defense of an Indemnifiable Claim within 15 days after receiving written notice of the existence of the claim or fails to diligently conduct the defense of any such action claim; or (ii) the Indemnified Party shall reasonably conclude that there is a conflict of interest between the Indemnifying Party and to participate therein, but the fees and expenses Indemnified Party in the conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that claim or there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party, in either of which events the Indemnifying Party shall pay the fees and in disbursements of counsel to each of the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether If the Indemnifying Party does not assume such defense or not the Indemnity Obligor chooses Indemnified Party has the right to defend or prosecute such control the defense of the claim, all the parties hereto Indemnified Party may compromise or settle the claim on behalf of and for the account and risk of the Indemnifying Party, who shall cooperate in be bound by the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithresult. The Indemnity Obligor Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be liable for unreasonably withheld), settle or compromise any settlement Indemnifiable Claim or permit a default or consent to entry of any such claim effected without its prior written consent. In judgment unless the event of payment by claimant and the Indemnity Obligor Indemnifying Party provide to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances an unqualified release from all liability in respect of which the Indemnified Party may have any right or claim against such third Claim. In all cases, the party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent right to control the defense of an Indemnifiable Claim may participate in the Indemnified Partydefense at its own expense.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying ------- Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnified Party states in such notice that prompt action is required), notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the right to employ counsel separate from counsel employed by Indemnifying Party and the Indemnity Obligor Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment of such counsel it is advisable for such Indemnifying Party, then the Indemnified Party to employ separate counsel, or (c) shall have the Indemnity Obligor has failed right to assume and direct the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim. In such an event, the Indemnity Obligor Indemnifying Party shall be subrogated to pay the reasonable fees and shall stand in the place disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party as to any events or circumstances in respect of which nor the Indemnified Party may have settle or compromise any right or claim against such (however, if the sole settlement relief payable to a third party relating to in respect of such indemnified matter. The Indemnified Third Party shall cooperate with Claim is monetary damages that are paid in full by the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any Indemnifying Party, the Indemnifying Party may settle such claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to -------- ------- settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements.

Defense. If In the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against case of a third party available by virtue of the circumstances of the Lossclaim, the Indemnity Obligor Indemnifying Party may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; providedoption, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume control the defense of an Indemnifiable Claim at such action and employ Indemnifying Party’s expense with counsel reasonably satisfactory to the Indemnified Party. Whether Notwithstanding the foregoing, the Indemnified Party shall have the right to retain counsel of its choice at its own expense and participate in the defense of the Indemnifiable Claim; provided, however, that the Indemnifying Party shall pay the fees and disbursements of such separate counsel if (1) the employment of such separate counsel has been specifically authorized in writing by the Indemnifying Party; or not (2) the Indemnity Obligor chooses named parties to defend or prosecute the proceeding in which such claim, all demand, action or cause of action has been asserted include both the parties hereto shall cooperate Indemnifying Party and such Indemnified Party and, in the defense reasonable judgment of counsel to such Indemnified Party, there exists one or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as more good faith defenses that may be reasonably requested available to the Indemnified Party that are in connection therewithconflict with those available to the Indemnifying Party or that the Indemnifying Party and Indemnified Party have actual material conflicting interests with respect to such claim, demand, action or course of action. The Indemnity Obligor Notwithstanding the foregoing, the Indemnifying Party shall not be liable for any settlement the fees and disbursements of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the more than one counsel for all Indemnified Party Parties in connection with any Loss one proceeding or any similar or related proceedings arising out of a Third from the same general allegations or circumstances. If the Indemnifying Party Claim, does not assume such defense or the Indemnity Obligor shall be subrogated to and shall stand in the place of Indemnifying Party notifies the Indemnified Party as to any events or circumstances in respect of which within thirty days that it will not assume such defense, the Indemnified Party may have any right or control the defense of such claim against such third and may settle the claim on behalf of and for the account and risk of the Indemnifying Party, who shall be bound by the result. In all cases, the party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent right to control the defense of the Indemnified PartyIndemnifiable Claim may participate in the defense at its own expense, subject to the second sentence of this paragraph.

Defense. If The Indemnifying Party shall be entitled to undertake and control the facts relating to a Loss arise out a defense, compromise and/or settlement of the Third Party Claim, or if there is any claim against a third party available by virtue of representatives chosen by the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, and reasonably satisfactory acceptable to the Indemnified Party, at its cost and expense; provided, however, if the Indemnifying Party admits that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss it has an indemnification obligation hereunder with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, subject to the Indemnity Obligor terms, limitations and conditions of this Article 6, in which case such admission shall be subrogated constitute the Indemnifying Party’s undertaking to pay directly all costs, expenses, damages, judgments, awards, penalties and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action assessments incurred in connection with any claim that would adversely affect therewith subject to the Indemnified Party without terms, limitations and conditions of this Article 6. With the prior written consent of the Indemnified Party, the Indemnifying Party may undertake and control the defense, compromise and/or settlement of the Third Party Claim without admitting that it has an indemnification obligation hereunder. If the Indemnifying Party undertakes the defense of the Third Party Claim, then the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in the defense of the Third Party Claim at its own expense. So long as the Indemnifying Party is defending the Third Party Claim actively and in good faith pursuant to this Section 6.3(b), the Indemnified Party shall not compromise or settle, or consent to the entry of a judgment with respect to, the Third Party Claim without the prior written consent of the Indemnified Party; provided, that no such consent shall be required for any such settlement or compromise that (i) is exclusively monetary, (ii) includes, as an unconditional term thereof, the giving by the third party asserting such claim to all Indemnified Parties of an unconditional release from all liability with respect to such claim and (iii) does not contain an admission of liability on the part of the Indemnified Party.

Defense. (a) The indemnifying party shall be entitled to participate in the defense of the External Claim and, if it so chooses, to assume and control the defense thereof with counsel selected by the indemnifying party and reasonably acceptable to the indemnified party (which acceptance shall not be unreasonably withheld or delayed); provided that following such assumption the indemnifying party diligently conducts the defense thereof. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third indemnifying party available by virtue of the circumstances of the Lossassumes such defense, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party indemnified party shall have the right to participate in the defense thereof, and to employ counsel separate from counsel employed by at its own expense, provided that the Indemnity Obligor in any such action and to participate therein, but the indemnifying party shall be liable for all reasonable fees and expenses of such counsel in the circumstances set forth in Clause 15.2(b), it being understood that the indemnifying party shall control such defense and shall be at empowered to make any settlement with respect to the Indemnified PartyExternal Claim that satisfies the conditions to the indemnified party's own expense, unless (a) consent obligation pursuant to the employment thereof has been specifically authorized by the Indemnity Obligor, last sentence of Clause 15.2(c). (b) such Indemnified Party The indemnifying party shall be liable for the reasonable fees and expenses of legal counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than the period prior to the date on which the indemnified party gives notice of the External Claim as provided above). Notwithstanding the foregoing, if (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of separate counsel for the indemnified party or (ii) the named parties (including any impleaded parties) to an External Claim include both the indemnifying party and the indemnified party and the indemnified party has been advised by legal counsel reasonably satisfactory to the Indemnity Obligor that there may be one is material conflict of interest requiring or more making it advisable that the indemnified party have separate legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or the indemnifying party shall be liable for all reasonable fees and expenses of separate legal counsel for the indemnified party in connection with that External Claim. (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in indemnifying party assumes the defense of an External Claim, the indemnified party shall not admit any liability with respect to, or prosecution thereof and shall furnish settle, compromise or discharge, such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor External Claim without the indemnifying party's prior written consent (which consent shall not be liable for unreasonably withheld or delayed). However, if settled with such consent, the indemnifying party shall indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. The indemnifying party shall not, without the prior written consent of the indemnified party, effect any settlement, compromise or discharge of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances External Claim in respect of which the Indemnified Party may any indemnified party is or could have any right or claim against such third been a party relating to and indemnity could have been sought hereunder by such indemnified matter. The Indemnified Party shall cooperate with party, unless such settlement, compromise or discharge (i) provides for full settlement and complete release, without any equitable award or relief, and (ii) by its terms (or pursuant to a binding commitment of the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action indemnifying party) obligates the indemnifying party to pay the full amount of the liability in connection with any claim that would adversely affect such External Claim (subject to the Indemnified Party without the consent provisions of the Indemnified PartyClause 14.5).

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor indemnifying party shall either (A) acknowledge and agree in writing that the Third Party Claim is a Claim for which indemnified party has responsibility if such Claim is adversely determined pursuant to this Agreement, or (B) not make the election under (A) or make the election under (A) under a reservation of rights without admitting that the Third Party Claim is a Claim for which indemnified party has responsibility if such Claim is adversely determined pursuant to this Agreement. In the event that the indemnifying party elects (A) above, it shall control the defense, compromise or settlement of such Third Party Claim, with counsel of its choice reasonably acceptable to the indemnified party and at the indemnifying party’s sole cost and expense, if the indemnifying party, if requested by the indemnified party, has provided evidence reasonably satisfactory to the indemnified party of the indemnifying party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the indemnified party may participate therein through separate counsel chosen by it and at its sole cost and expense. If the indemnifying party does not elect pursuant to (A) above, then (xx) the Third Party Claim shall not be subrogated deemed to be a claim indemnified by the indemnifying party, and neither party shall stand have waived any rights to assert that the Third Party Claim is or is not properly a claim subject to the indemnifying party’s indemnity obligations, (yy) both the indemnifying party and the indemnified party may, at their individual elections, participate in the place defense of such Third Party Claim, but the indemnifying party will remain responsible for the costs of defense, including reasonable attorneys’ fees of the Indemnified indemnified party should the Third Party as Claim ultimately be determined to be subject to the indemnifying party’s indemnity obligation; and (zz) the indemnified party shall have the right to compromise and settle the Third Party Claim on any events or circumstances basis believed reasonable, in respect of which good faith, by the Indemnified indemnified party, and the indemnifying party will be bound thereby should the Third Party may have any right or claim against such third party relating Claim ultimately be determined to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partybe subject to indemnifying party’s indemnity obligation.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party of its best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementA) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (B) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to employ counsel separate from counsel employed by written advice of its counsel, that (x) there is a conflict of interest between the Indemnity Obligor Indemnifying Party and the Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment of such counsel it is advisable for such Indemnifying Party, then the Indemnified Party to employ separate counsel, or (c) shall have the Indemnity Obligor has failed right to assume and direct the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim. In such an event, the Indemnity Obligor Indemnifying Party shall be subrogated to pay the reasonable fees and shall stand in the place disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party as to any events or circumstances in respect of which nor the Indemnified Party may have any right settle or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with compromise any claim over the objection of the other, provided, however, that would adversely affect consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and provided further, that if the sole settlement relief payable to a Third Party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements.

Defense. If (a) The Authority shall notify the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving Borrower no later than 20 entire Business Days after written notice to the Authority that any third party has brought any proceeding against an Indemnified Party within 15 days following its receipt of the that may result in an Indemnifiable Loss (a “Third Party Proceeding”). (b) When notice of such claima Third Party Proceeding is given to the Borrower at any time by an Indemnified Party, elect to upon the Indemnified Party’s request the Borrower shall assume the defense or the prosecution thereofinvestigation and defense, including the employment of counsel selected by the Indemnified Party and reasonably acceptable to the Borrower, and shall pay all Litigation Expenses of the Indemnified Party related to the Third Party Proceeding. Upon assuming the defense of an Indemnified Party, the Borrower may litigate, compromise or accountants, reasonably satisfactory to settle the Third Party Proceeding for the Indemnified Party, at its cost and expense; provided, however, except that during the interim the Borrower may not compromise or settle for an Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at without the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such ’s written approval. An Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable no liability for any compromise or settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimProceeding made without its written approval. (c) Each Indemnified Party may employ separate counsel in any Third Party Proceeding and participate in the investigation and defense. The Borrower shall pay the reasonable fees and disbursements of separate counsel, except that a Depository Indemnified Party may employ separate counsel at the Borrower’s expense only if in the Depository Indemnified Party’s reasonable judgment common representation creates a conflict of interest or if all parties commonly represented do not agree as to the action (or inaction) of counsel. (d) Notwithstanding clause (b) and (c), alternatively, when notice of a Third Party Proceeding is given to the Borrower at any time by an Indemnified Party, the Indemnity Obligor Indemnified Party may engage the Attorney General as counsel in connection with the investigation and defense. In that case, the Borrower shall be subrogated to and shall stand in the place pay all Litigation Expenses of the Indemnified Party as related to any events or circumstances in respect of which the Third Party Proceeding. Upon engaging the Attorney General, the Indemnified Party may have litigate, compromise or settle the Third Party Proceeding, except that the Borrower has no liability for any right compromise or claim against such third party relating to such indemnified matter. The settlement of a Third Party Proceeding made without the Borrower’s written approval. (e) If an Indemnified Party shall cooperate with or the Indemnity Obligor in prosecuting Authority fails to notify the Borrower of a Third-Party Proceeding no later than 20 entire business days after written notice to the Authority of the Third-Party Proceeding, the Borrower is not required to pay for any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect Litigation Expense the Indemnified Party without the consent of incurs before the Indemnified PartyParty gives notice to the Borrower.

Defense. If a Third Party Claim is made against an Indemnified Party, then the facts relating Indemnifying Party shall be entitled to a Loss arise out a participate in the defense of the Third Party Claim, or and if there is any claim against a third party available by virtue the Indemnifying Party so chooses, to assume the defense of the circumstances Third Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right, at its sole expense in each instance, to participate in the defense of the LossThird Party Claim and to employ counsel separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, including any settlement or compromise of the Third Party Claim; provided, however, if the Indemnified Party has been advised by legal counsel that a joint representation would be inappropriate because of a conflict of interest, the Indemnity Obligor mayIndemnified Party shall have the right, at the Indemnifying Party’s expense, to participate in the defense of such Third Party Claim and to employ its own counsel. However, the Indemnifying Party may not enter into or otherwise consent to any settlement or compromise without the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed), unless such settlement or compromise (A) includes a complete and unconditional release of liability of the Indemnified Party and (B) does not impose any obligations, restrictions or Losses on the Indemnified Party other than solely monetary obligations for which the Indemnified Party will be fully indemnified hereunder by giving the Indemnifying Party. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense of the Third Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) provision to the Indemnifying Party of records that are reasonably relevant to the Third Party Claim and the provision of access to employees on a mutually convenient basis to provide additional information and explanation of any material provided. The Indemnifying Party shall be entitled to assume and control the defense of a Third Party Claim only if (i) the Indemnifying Party provides written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect setting forth an election to so assume the defense or within thirty (30) days of receiving the prosecution thereof, including Indemnification Notice relating to a Third Party Claim and an acknowledgment of its obligations to indemnify the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Indemnifying Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with under this Agreement in respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expenseThird Party Claim, unless (aii) the employment thereof has been specifically authorized by the Indemnity ObligorThird Party Claim seeks solely monetary damages, (biii) such Indemnified the Third Party has been advised by Claim does not involve criminal allegations, (iv) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently with counsel reasonably satisfactory to the Indemnity Obligor Indemnifying Party (and for which purpose the Parties hereby agree that there may be one the counsel listed in Section 13.9 are satisfactory), (v) it is reasonably likely that a judgment, finding or more legal defenses available to it which are different from or additional to those available other resolution of the Third Party Claim that is adverse to the Indemnity Obligor Indemnifying Party will not have a material adverse impact on the Business of the Company or Buyer, and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (cvi) the Indemnity Obligor Indemnifying Party has failed to assume not determined in good faith that a joint representation would be inappropriate because of a conflict of interest. If the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to Indemnifying Party (x) notifies the Indemnified Party in connection with any Loss arising out writing that it elects not to assume or to continue control the defense of a the Third Party Claim or (y) is otherwise not entitled to assume or control the defense of the Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of then the Indemnified Party as shall (upon further written notice to any events or circumstances in respect the Indemnifying Party) have the right to undertake the defense of which the Third Party Claim; provided that the Indemnified Party may have shall not settle or compromise, or enter into any right agreement to settle or claim against such third party relating to such indemnified matter. The Indemnified compromise, any Third Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party Claim without the prior written consent of the Indemnified PartyIndemnifying Party (which shall not be unreasonably withheld, conditioned or delayed).

Defense. If both Parties are charged with infringement pursuant to a claim described in Section 6.4(a), the Parties shall defend such claim jointly, unless they agree otherwise. If only one Party is charged with infringement, such Party will have the first right but not the obligation to defend such claim. If the facts relating charged Party does not commence actions to a Loss arise out a defend such claim within [***] after being so charged, then the other Party shall have the right, but not the obligation, to defend any such claim. In any event, the non-defending Party shall reasonably cooperate with the Party conducting the defense of the claim and shall have the right to participate with separate counsel at its own expense, and the defending Party shall consider comments by the non-defending Party in good faith. The Party defending the claim shall bear the cost and expenses of the defense of any such Third Party Claiminfringement claim and shall have sole rights to any recovery. If the Parties jointly defend the claim, or if there is Nektar shall bear fifty percent (50%), and BMS shall bear fifty percent (50%) of any claim against a third party available by virtue costs and expenses of the circumstances defense of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified any such Third Party within 15 days following its receipt of the notice of such infringement claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during that, notwithstanding the interim foregoing, if the Indemnified claim relates solely to one Party’s Compound, such Party shall use its best efforts to take all action will bear one hundred percent (not including settlement100%) reasonably necessary to protect against further damage or loss with respect to of the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees costs and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action claim, shall have sole rights to any recovery and employ counsel reasonably satisfactory shall have the sole right, but not the obligation, to defend, settle and otherwise handle the disposition of such claim. If either Party recovers monetary damages from any Third Party while jointly defending the claim, such recovery shall be allocated first to the Indemnified Partyreimbursement of any actual, unreimbursed costs and expenses incurred by the Parties in such litigation (including, for this purpose, a reasonable allocation of expenses of internal counsel) pro rata in accordance with the aggregate amounts spent by both Parties, and any remaining amounts shall be split fifty percent (50%) to Nektar and fifty percent (50%) to BMS, unless the Parties agree in writing to a different allocation. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto Neither Party shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for enter into any settlement concerning activities under this Agreement or the Combined Therapy that affects the other Party’s rights under this Agreement or imposes any obligations on the other Party, including any admissions of any wrongdoing on behalf of the other Party, without such claim effected without its other Party’s prior written consent. In the event of payment by the Indemnity Obligor , not to the Indemnified Party in connection with any Loss arising out of be unreasonably withheld or delayed, except that a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with settle any claim that would adversely affect the Indemnified Party solely relates to its Compound without the consent of the Indemnified other Party as long as such other Party’s rights under this Agreement are not adversely impacted (in which case, it will obtain such other Party’s prior written consent, not to be unreasonably withheld or delayed).

Defense. If In the facts relating event any person or entity not a party to this Agreement shall make a Loss arise out a Third demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party Claimin respect of matters embraced by the indemnity under this Agreement, or if there is in the event that a potential loss, damage or expense comes to the attention of any claim against a third party available in respect of matters embraced by virtue the indemnity under this Agreement, then the party receiving notice or aware of such event shall promptly notify the other party or parties of the circumstances of the Lossdemand, the Indemnity Obligor may, claim or lawsuit. Within ten days after notice by giving written notice to the Indemnified Party within 15 days following its receipt of (the notice "Notice") to an Indemnifying Party of such claimdemand, elect claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to assume the defense or the prosecution thereof, including the employment of retain counsel or accountants, reasonably satisfactory to for the Indemnified Party, at its cost and expense; providedto defend any such demand, howeverclaim or lawsuit, provided that during counsel who shall conduct the interim defense of such demand, claim or lawsuit shall be approved by the Indemnified Party whose approval shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossunreasonably be withheld. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinright, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, unless to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (a) the employment thereof has been specifically authorized named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the Indemnity Obligorsame counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party's obligation to indemnify), or (b) the employment of counsel by such Indemnified Party has been advised authorized in writing by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counselIndemnifying Party, or (c) the Indemnity Obligor Indemnifying Party has failed not in fact employed counsel to assume the defense of such action and employ counsel reasonably satisfactory to within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Whether or not the Indemnity Obligor chooses to defend or prosecute such claimNo Indemnifying Party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such demand, claim effected without its prior written consent. In the event or lawsuit, shall consent to entry of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to judgment or enter into any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party settlement without the consent of the Indemnified Party.; provided, however, that if a firm written offer is made by the third party to settle any claim, which involves only the payment of cash (United States dollars) and the claimant provides to the Indemnified Party a general release in a form reasonably acceptable to the Indemnified Party from all liability, and the Indemnifying Party proposes to accept (and pay in full the amount of ) such settlement but the Indemnified Party refuses to consent to such settlement, then: (i) the Indemnifying Party shall be excused from, and the Indemnified Party shall be solely responsible for, all further defense costs related to such third-party claim; (ii) the maximum reimbursement amount relating to such third-party claim shall be the amount of the proposed settlement (plus any defense costs not paid by the Indemnifying Party prior to the rejection of the settlement) if the amount thereafter recovered from the Indemnified Party on such claim is greater that the amount of the proposed settlement; and;

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there any such action is any claim brought against a third party available by virtue of the circumstances of the Lossan indemnified party, the Indemnity Obligor may, by giving written notice indemnifying Party will be entitled to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect participate in and to assume the defense or thereof to the prosecution extent that it may wish, and after notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified indemnifying Party shall use its best efforts not be liable to take all action (not including settlement) reasonably necessary to protect against further damage such indemnified party for any legal or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed other expenses subsequently incurred by the Indemnity Obligor latter in any such action and to participate therein, but connection with the fees and expenses of such counsel shall be at defense thereof unless the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory claim. Notwithstanding any of the foregoing to the Indemnified contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying Party fails to assume such defense, the expenses of such defense to be paid by the indemnifying Party. Whether or not As a condition to the Indemnity Obligor chooses to defend or prosecute such claimindemnifying Party’s obligations hereunder, all the parties hereto shall indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or prosecution thereof and shall furnish such recordsenter into any settlement with respect to a claim either (a) without the consent of the indemnified party, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which consent shall not be liable for unreasonably withheld, delayed or conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claimaction, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect defense of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party has been assumed by an indemnifying Party, without the consent of the Indemnified such indemnifying Party., which consent shall not be unreasonably withheld. PURCHASE AND SALE AGREEMENT 35

Defense. (a) If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to indemnifying party may assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory thereof by written notice to the Indemnified Partyindemnified party agreeing to indemnify and defend the indemnified party from and against all indemnifiable Losses under this Article 9 arising from such claim. (b) If the indemnifying party agrees to assume the defense and prosecution of such claim, at its cost and expense; provided, however, that during then the interim the Indemnified Party indemnified party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against have no further damage or loss obligation with respect to such claim. In any such case, the Loss. The Indemnified Party indemnified party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor indemnifying in any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at the Indemnified Partyindemnified party's own expense. No indemnifying party shall agree to a settlement of any claim without the indemnified party's prior written consent, unless (a) which consent shall not be unreasonably withheld in light of the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or indemnified party's circumstances. (c) If the Indemnity Obligor has failed to indemnifying party shall not assume the defense and prosecution of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute any such claim, all the indemnified party shall keep the indemnifying party reasonably informed of the progress of any proceedings relating to such claim and shall consult regularly with the indemnifying party with respect thereto and shall not agree to a settlement of such claim without the indemnifying party's written consent, which consent shall not be unreasonably withheld in light of the indemnifying party's circumstances. (d) All parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such all witnesses and testimony, records, information materials and testimony other information, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, as may be reasonably requested in connection therewith. The Indemnity Obligor . (e) Subject to Section 11.12, the indemnification provisions of this Article 9 shall not be liable for the sole remedy with respect to any settlement of any such claim effected without its prior written consent. In the event of payment Losses incurred by the Indemnity Obligor to Protected Parties or the Indemnified Party in connection with any Loss arising out of a Third Party ClaimCS Parties, the Indemnity Obligor shall be subrogated to and shall stand except in the place case of the Indemnified Party as to any events fraud or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyintentional misrepresentation.

Defense. If In case any claim, demand or deficiency (a "CLAIM") is asserted or any action is commenced or notice is given of any administrative or other proceeding against the facts relating person(s) and/or entities seeking indemnity under this SECTION 11 (hereinafter referred to a Loss arise out a Third Party Claimas the "INDEMNITEE") in respect of which such indemnity is sought hereunder (each and all of such persons and entities being hereinafter referred to as the "INDEMNITOR") pursuant to this SECTION 11, Indemnitee shall give prompt notice thereof in writing to Indemnitor. Within thirty (30) days after receipt of such notice (or if there prior to such earlier date as any answer in any administrative or other proceeding is any claim against a third party available by virtue of the circumstances of the Lossdue), the Indemnity Obligor may, by giving Indemnitor may give Indemnitee written notice of its election to conduct the Indemnified Party within 15 days following defense of such Claim at its receipt of the own expense. If Indemnitor has given Indemnitee such notice of such claimelection to conduct the defense, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party Indemnitee shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall nevertheless have the right to employ counsel separate from counsel employed by participate in the Indemnity Obligor in any such action and to participate thereindefense thereof, but the fees and expenses of such counsel participation shall be solely at its expense. If Indemnitor shall not notify Indemnitee in writing (within the Indemnified Party's own expense, unless (atime hereinabove provided) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory of its election to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume conduct the defense of such action and employ counsel reasonably satisfactory to Claim, Indemnitee may (but need not) conduct (at the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in expense of Indemnitor) the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithof any Claim. The Indemnity Obligor party assuming the defense of a Claim hereunder (the "DEFENDING PARTY") shall not be liable for notify the other party of its intention to settle, compromise or satisfy any settlement such Claim and may make such settlement, compromise or satisfaction unless such other party (the "ASSUMING PARTY") shall notify the Defending Party in writing (within thirty (30) days after receipt of such notice of intention to settle, compromise or satisfy) of its election to assume (at its sole expense) the defense of any such claim effected without its prior written consentClaim and promptly thereafter take appropriate action to implement such defense. In The Assuming Party shall indemnify the event Defending Party and hold it harmless against any losses in excess of payment by the Indemnity Obligor to amount of losses the Indemnified Defending Party would have incurred if the proposed settlement had been agreed upon. Indemnitee shall cooperate with Indemnitor in such defense, at Indemnitor's cost, and Indemnitee shall provide reasonable assistance of Indemnitee's employees in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partydefense.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying ------- Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party of its best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to employ counsel separate from counsel employed by written advice of its counsel, that (x) there is a conflict of interest between the Indemnity Obligor Indemnifying Party and the Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment of such counsel it is advisable for such Indemnifying Party, then the Indemnified Party to employ separate counsel, or (c) shall have the Indemnity Obligor has failed right to assume and direct the defense of such action Third Party Claim. In such an event, the Indemnifying Party shall pay the reasonable fees and employ disbursements of counsel reasonably satisfactory of the Indemnifying Party and one counsel to all the Indemnified PartyParties. Whether Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or not compromise any claim over the Indemnity Obligor chooses objection of the other, provided, however, that -------- ------- consent to defend settlement or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor compromise shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment unreasonably withheld by the Indemnity Obligor to the Indemnified Party and provided, further, that if the sole settlement relief -------- ------- payable to a Third Party in connection with any Loss arising out respect of a such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party and such settlement includes an unconditional term releasing the Indemnified Party from all liability in respect of such Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Indemnifying Party may have any right or settle such claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there any such action is any claim brought against a third party available by virtue of the circumstances of the Lossan indemnified party, the Indemnity Obligor mayindemnifying Party will be entitled to participate in and to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the Indemnified Party indemnified party within 15 thirty (30) days following of its receipt of the written notice of such claimaction from the indemnified party, elect and after such notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified indemnifying Party shall use its best efforts not be liable to take all action (not including settlement) reasonably necessary to protect against further damage such indemnified party for any legal or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed other expenses subsequently incurred by the Indemnity Obligor latter in any such action and to participate therein, but connection with the fees and expenses of such counsel shall be at defense thereof unless the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the Indemnified foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified party in connection with the defense of such action or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the indemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. Whether or not As a condition to the Indemnity Obligor chooses to defend or prosecute such claimindemnifying Party’s obligations hereunder, all the parties hereto shall indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable out of pocket expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or prosecution thereof and shall furnish such recordsenter into any settlement with respect to a claim either (a) without the consent of the indemnified party, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which consent shall not be liable for unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claimaction, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect defense of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party has been assumed by an indemnifying Party, without the consent of the Indemnified such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If The Parties, working through the facts relating JSC, shall cooperate to defend any such claims under the strategy, terms and conditions as may be authorized by the JSC. The JSC shall designate one Party as the leading Party for such defense. The Parties shall make decisions with regard to such actions covered by this Section 9.6 jointly through the JSC in accordance with the provisions of Sections 2.5(b) and 2.5(c), provided that any unresolved disputes shall not be subject to settlement by expedited arbitration and, in the case of any unresolved dispute, each Party named as a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving defendant in such action shall be entitled upon written notice to the Indemnified Party within 15 days following defend itself in such matter independently by counsel of its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, own choice and at its cost and own expense; provided, however, that during the interim the Indemnified each Party shall use its best efforts inform the other Party of the progress of such defense and, if reasonably requested by the other Party, shall reasonably cooperate with the other Party. For so long as the Parties continue to take pursue such matter jointly through the JSC, all costs and expenses of any defense actions under this Section 9.6(b) shall be [*]. In any action (not pursued jointly by the Parties through the JSC, the non-leading Party shall reasonably cooperate with the leading Party, including settlement) reasonably necessary if required to protect against further damage or loss with respect to the Lossconduct such defense, furnishing a power of attorney. The Indemnified non-leading Party shall have the right to employ counsel separate from counsel employed by confer, through the Indemnity Obligor JSC, with the leading Party in any such action defense and the leading Party shall consider in good faith such input from the non-leading Party. If either Party desires to participate thereinbe released from the cost-sharing obligation described above, but then such Party (a "Removed Party") shall be entitled, upon thirty (30) days prior written notice to the fees JSC, to be released from sharing such costs and the matter shall thereafter be handled and pursued at the discretion of the continuing Party (a "Continuing Party"). Following the end of such thirty (30) day notice period, the Continuing Party shall bear all costs and expenses of such counsel shall be at for the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place continuation of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Removed Party shall promptly and reasonably cooperate with to support the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent defense efforts of the Indemnified Continuing Party. In any event, the Removed Party shall forego its rights to separate representation in any matter from which it has withdrawn.

Defense. If the facts relating With respect to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue Proceeding as to which Indemnitee notifies Tyco International plc and Tyco Management of the circumstances of commencement thereof, Tyco International plc will be entitled to participate in the LossProceeding at its own expense and except as otherwise provided below, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following extent Tyco International plc so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from Tyco International plc to Indemnitee of its receipt of the notice of such claim, elect election to assume the defense of any Proceeding, Tyco International plc shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the prosecution thereof, including the employment defense of counsel such Proceeding other than reasonable costs of investigation or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossas otherwise provided below. The Indemnified Party Indemnitee shall have the right to employ legal counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinProceeding, but all Expenses related thereto incurred after notice from Tyco International plc of its assumption of the fees and expenses of such counsel defense shall be at the Indemnified Party's own expense, unless Indemnitee’s expense unless: (ai) the employment thereof of legal counsel by Indemnitee has been specifically authorized by the Indemnity ObligorTyco International plc, (bii) such Indemnified Party Indemnitee has been advised by counsel reasonably satisfactory to the Indemnity Obligor determined that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor a conflict of interest between Indemnitee and Tyco International plc in the reasonable judgment defense of such the Proceeding, (iii) after a Change in Control, the employment of counsel it is advisable for such Indemnified Party to employ separate counselby Indemnitee has been approved by the Independent Counsel, or (civ) the Indemnity Obligor has failed Tyco International plc shall not in fact have employed counsel to assume the defense of such action and employ counsel reasonably satisfactory Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Tyco International plc to the Indemnified Partyfullest extent permitted by law. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor Tyco International plc shall not be liable entitled to assume the defense of any Proceeding (x) brought by or on behalf of Tyco Management or Tyco International plc, (y) as to which Indemnitee shall have made the determination provided for any settlement in (ii) above or (z) after a Change in Control (it being specified, for the avoidance of doubt, that Tyco International plc may assume defense of any such claim effected without its prior written proceeding described in this sentence with Indemnitee’s consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with , provided that any Loss arising out of a Third Party Claim, the Indemnity Obligor such consent shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely not affect the Indemnified Party without rights of Indemnitee under the consent foregoing provisions of the Indemnified Partythis Section 6(b)).

Defense. If The Indemnifying Party shall have the facts relating right, at its option (subject to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor maylimitations set forth in Section 7.2(c) below) and at its own expense, by giving written notice to the Indemnified Party within 15 days following its receipt to assume the entire control of, subject to the right of the notice Indemnified Party to participate (at its expense and with counsel of its choice) in, the defense, compromise or settlement of the Third Party Claim as to which such claimNotice of Claim has been given, elect and shall be entitled to appoint a recognized and reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense. If the Indemnifying Party is permitted and elects to assume the defense or of a Third Party Claim: (i) the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to Indemnifying Party shall diligently and in good faith defend such Third Party Claim and shall keep the Indemnified Party, at its cost and expenseParty reasonably informed of the status of such defense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in approve any such action and to participate thereinsettlement, but the fees and expenses of such counsel shall which approval will not be at the Indemnified Party's own expenseunreasonably withheld, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligordelayed or conditioned; provided, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and that, in the reasonable judgment of such counsel it is advisable for such Indemnified event that the Indemnifying Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its provides prior written consent. In the event of payment by the Indemnity Obligor notice to the Indemnified Party of any settlement or compromise of, or offer to settle or compromise, any Third Party Claim in connection full and the Indemnified Party withholds its consent to such settlement or compromise then, in the event indemnification is ultimately determined to be owing to an Indemnified Party hereunder with any Loss arising out of a respect to such Third Party Claim, the Indemnity Obligor in no event shall indemnification be subrogated provided to and shall stand in the place of the such Indemnified Party as to any events or circumstances in respect of which such Third Party Claim in an amount greater than the Indemnified amount contained in such settlement or compromise of, or offer to settle or compromise, such Third Party may have any right or claim against such third party relating to such indemnified matter. The Claim; and (ii) the Indemnified Party shall cooperate fully in all respects with the Indemnity Obligor Indemnifying Party in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect such defense, compromise or settlement thereof, including, without limitation, the selection of counsel, and the Indemnified Party without shall make available to the consent of the Indemnified PartyIndemnifying Party all pertinent information and documents under its control.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is In connection with any claim against giving rise to indemnity under this Agreement resulting from or arising out of any claim or legal proceeding by a third party available by virtue of the circumstances of the Losswho is not a party to this Agreement, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following at its receipt of the notice of such claim, elect to sole cost and expense shall assume the defense of any such claim or the prosecution thereof, including the employment of legal proceeding with legal counsel or accountants, reasonably satisfactory to approved by the Indemnified Party, which approval shall not be unreasonably withheld. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its cost and own expense; provided, however, that during if (i) the interim named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party shall use its best efforts and representation of both parties by the same counsel would be inappropriate due to take all actual or potential differing interests between them (other than differing interests associated with the Indemnifying Party’s obligation to indemnify), or (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action (not including settlement) reasonably necessary to protect against further damage or loss with respect to within a reasonable time; then, the Loss. The Indemnified Party shall have the right to employ retain its own counsel separate from counsel employed at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnity Obligor in any such action and Indemnifying Party on a current basis. Subject to participate thereinSection 6.4(a), but if after notification thereof, the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to does not assume the defense of any such action and employ counsel reasonably satisfactory claim or litigation resulting from a claim within a timely manner so as not to prejudice the rights of the Indemnified Party, the Indemnified Party may defend against such claim or litigation, in such manner as it may deem reasonably appropriate. Whether or not the Indemnity Obligor chooses Each party shall cooperate, and cause its respective Affiliates to defend or prosecute such claimcooperate, all the parties hereto shall cooperate in the defense or prosecution thereof of any such third party claim and shall furnish or cause to be furnished such records, information and testimony testimony, and shall attend such conferences, discovery proceedings and trial proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified ------- Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, the Indemnified Party may pay (not without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim including settlement) reasonably necessary to protect against further damage or loss with respect the costs and expenses of the Indemnified Party incurred in connection therewith. Notwithstanding anything to the Loss. The contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to employ counsel separate from counsel employed by written advice of its counsel, that (x) there is a conflict of interest between the Indemnity Obligor Indemnifying Party and the Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expenseThird Party Claim, unless or (ay) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be represented by counsel selected by it. In such an event, the reasonable judgment fees and disbursements of such a single counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified PartyParty shall be included in the loss suffered by the Indemnified Party in respect of such Third Party Claim. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto Indemnifying Party shall cooperate in have assumed the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent shall not be subrogated to and unreasonably withheld). If the Indemnifying Party shall stand in have assumed the place defense of a Third Party Claim, the Indemnified Party as shall agree to any events settlement, compromise or circumstances discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in respect connection with such Third Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party may have reasonably determines, based on the opinion of its outside counsel, cannot be separated form any right related claim for money damages. If such equitable relief or claim against such third party other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partymoney damages.

Defense. If (a) Each Party shall promptly notify the facts relating to a Loss arise out a other Party of any actual or potential claim alleging that the Research, Development, Manufacture, or Commercialization of any Licensed Product infringes, misappropriates, or otherwise violates any Patent Rights, Know-How, or other intellectual property rights of any Third Party Claim, or if there is (“Third Party Infringement”). In any claim against a third party available by virtue of the circumstances of the Losssuch instance, the Indemnity Obligor may, by giving written notice Parties shall as soon as practicable thereafter discuss in good faith the best response to the Indemnified Party within 15 days following its receipt of the such notice of Third Party Infringement, and, subject to Section 3.6, Gilead shall have the first right (but not the obligation) to defend any such claim, elect to assume the defense or the prosecution thereof, including the employment claim of counsel or accountants, reasonably satisfactory to the Indemnified PartyThird Party Infringement, at its cost Gilead’s sole discretion, cost, and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party and Hookipa shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor be represented in any such action by counsel of its own choice at Hookipa’s sole cost and to participate thereinexpense. CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[***]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, AS AMENDED. (b) If Gilead declines or fails to assert its intention to defend any such Indemnified claim of Third Party has been advised Infringement within [***] days following receipt or, as applicable, sending of a notice pursuant to Section 11.4(a), then Hookipa shall have the right (but not the obligation) to defend such claim of Third Party Infringement at Hookipa’s sole discretion, cost and expense, and Gilead shall have the right to be represented in any such action by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor of its own choice at Gilead’s sole cost and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or expense. (c) In no event shall either Party settle or otherwise compromise any Third Party Infringement by admitting that any Patent Right included within the Indemnity Obligor has failed to assume Licensed Technology is invalid or unenforceable, unless explicitly approved by the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate other Party in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consentwriting. In the event that Gilead, subject to Hookipa’s prior approval, enters into any settlement with respect to any actual or potential claim of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimInfringement which includes the acceptance of any license to Patent Rights, Know-How, or other intellectual property rights owned or otherwise Controlled by any Third Party and necessary or useful for the Indemnity Obligor Research, Development, Manufacture, or Commercialization of any Licensed Product, such settlement shall further be subrogated subject to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified PartySection 9.5(c).

Defense. If Subject to the facts relating to a Loss arise out limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, or if there is any claim against a third party available the Indemnifying Party shall have the right (exercisable by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 fifteen (15) days following its receipt after the Indemnified Party has delivered a Claim Notice of the notice Third Party Claim) to conduct and control, through counsel of such claimits choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s own cost and expense, elect the defense, compromise or settlement of the Third Party Claim; provided, that the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to assume the defense or the prosecution Indemnified Party in respect thereof, including and (ii) if requested by the employment of counsel or accountantsIndemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim. If the Indemnifying Party elects to conduct and control the defense of the Third Party Claim, the Indemnified Party may participate therein through separate counsel chosen by it and at its own cost and expense; provided. Notwithstanding the foregoing, howeverif (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 15-day period, that during (B) the interim Indemnifying Party shall fail to conduct such defense diligently, (C) the Indemnified Party shall reasonably determine that use its best efforts of counsel selected by the Indemnifying Party to take all action represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (not including settlementD) reasonably necessary to protect the Third Party Claim is for injunctive, equitable or other non-monetary relief against further damage or loss with respect to the Loss. The Indemnified Party, then the Indemnified Party shall have the right to employ control the defense, compromise or settlement of the Third Party Claim with counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be its choice at the Indemnified Indemnifying Party's own ’s sole cost and expense. In any event, unless (a) from and after delivery of a Claim Notice, the employment thereof has been specifically authorized by Indemnifying Party and the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor shall, and shall cause their respective affiliates and representatives to, cooperate fully in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in connection with the defense or prosecution thereof and shall furnish of any Third Party Claim, including furnishing such records, information and testimony and shall attend attending such conferences, discovery proceedings proceedings, hearings, trials and trial appeals as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to Indemnifying Party or the Indemnified Party in connection with therewith. In addition, the party controlling the defense of any Loss arising out of a Third Party Claim, Claim shall keep the Indemnity Obligor shall be subrogated to non-controlling party advised of the status thereof and shall stand consider in good faith any recommendations made by the place of the Indemnified Party as to any events or circumstances in non-controlling party with respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partythereto.

Defense. If Upon receipt of notice under Subsection (a) from the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnitee, the Indemnity Obligor mayIndemnifying Party will have the duty to either compromise or defend, at its own expense and by giving written notice counsel (reasonably satisfactory to the Indemnified Indemnitee), such Action. The Indemnifying Party within 15 will promptly (and in any event not more than twenty (20) days following its after receipt of the notice of such claim, elect Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to assume indemnify the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss Indemnitee with respect to the LossAction pursuant to this Article 8 and of its intention to either compromise or defend such Action. The Indemnified Once the Indemnifying Party shall gives such notice to the Indemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Indemnitee will have the right to employ separate counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereincontrol the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, but the fees costs, and expenses of such counsel shall be at the Indemnified Party's own expense, unless counsel) if: (ai) the employment thereof has been specifically authorized use of the counsel chosen by the Indemnity ObligorIndemnifying Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, (b) or targets of, such Indemnified Action include both the Indemnifying Party has been advised by counsel and the Indemnitee, and the Indemnitee reasonably satisfactory to the Indemnity Obligor concludes that there may be one or more legal defenses available to it which that are different from or additional to those available to the Indemnity Obligor and Indemnifying Party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) will not have the Indemnity Obligor has failed right to assume the defense of such action and Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnified Party. Whether Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; (iv) the Indemnifying Party denies or not the Indemnity Obligor chooses fails to timely admit its obligation to defend or prosecute such claim, all and indemnify the parties hereto shall cooperate Action; or (v) in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement reasonable opinion of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor counsel to the Indemnified Party in connection with any Loss arising out of a Third Party ClaimIndemnitee, the Indemnity Obligor shall be subrogated to and shall stand claim could result in the place of the Indemnified Party as Indemnitee becoming subject to any events injunctive relief or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party.relief other than

Defense. If In the facts relating to event any action, suit or proceeding (a Loss arise out a Third Party Claim"LEGAL ACTION") is brought against an indemnified party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to which the Lossindemnifying party may have liability under an indemnity agreement contained herein, the Legal Action shall, upon the written agreement of the indemnifying party that it is obligated to indemnify under such indemnity agreement, be defended by the indemnifying party and such defense shall include all proceedings on appeal or for review which counsel for the defendant shall deem appropriate. The Indemnified Party indemnified party shall have the right to employ be represented by counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinaccountants, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, unless (a) and shall be kept fully informed as to such Legal Action at all stages thereof whether or not it is represented by its own counsel. Until the employment thereof has been specifically authorized by indemnifying party shall have so assumed the Indemnity Obligordefense of any Legal Action, (b) such Indemnified Party has been advised by counsel or if the indemnified party shall have reasonably satisfactory to the Indemnity Obligor concluded that there may are likely to be one or more legal defenses available to it which the indemnified party that are different from or additional in addition to those available to the Indemnity Obligor and indemnifying party (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed indemnifying party shall not be entitled to assume the defense of such action Legal Action but shall have the right to be represented by counsel and employ counsel accountants, at its own expense, and shall be kept fully informed as to such Legal Action at all stages thereof whether or not represented by its own counsel), all legal or other expenses reasonably satisfactory incurred by the indemnified party shall be borne by the indemnifying party. The indemnifying party shall make available to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, indemnified party and its attorneys and accountants all the parties hereto shall cooperate in the defense or prosecution thereof books and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place records of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third indemnifying party relating to such indemnified matter. The Indemnified Party shall cooperate with Legal Action and the Indemnity Obligor parties hereto agree to render to each other such assistance as they may reasonably require of each other in prosecuting order to facilitate the proper and adequate defense of any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partysuch Legal Action.

Defense. If In the facts relating event any Person not a party to this Agreement shall make a Loss arise out a Third demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party Claimin respect of matters embraced by the indemnity under this Agreement, or if there is any claim against in the event that a third potential Loss, damage or expense comes to the attention of Buyer or Seller in respect of matters covered by the indemnity under this Agreement, then the party available by virtue receiving notice or becoming aware of such event shall promptly notify the other party of the circumstances of the Lossdemand, the Indemnity Obligor may, claim or lawsuit. Within ten days after notice by giving written notice to the Indemnified Party within 15 days following its receipt of (the notice "Notice") to the Indemnifying Party of such claimdemand, elect claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to assume retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to lawsuit must be approved by the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (whose approval will not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossbe unreasonably withheld. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinright, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, unless to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (ai) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (ii) the employment thereof has been specifically authorized of counsel by the Indemnity Obligor, (b) such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnified Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnifying Party. If any Indemnified Party is advised by its chosen counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it such Indemnified Party which are different from or additional in addition to those available which have been asserted by the Indemnifying Party, at the election of the Indemnified Party, the Indemnifying Party will have the right to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume continue the defense of such action demand, claim or lawsuit on behalf of such Indemnified Party and employ will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel reasonably satisfactory to retained by the Indemnified Party. Whether or not Party under this subparagraph (b) to undertake the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consentdefense. In the event of payment by that the Indemnity Obligor Indemnifying Party shall fail to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place respond within ten days after receipt of the Indemnified Party as to any events or circumstances in respect of which Notice, the Indemnified Party may have any right retain counsel and conduct the defense of such demand, claim or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with lawsuit, as it may in its sole discretion deem proper, at the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent sole cost and expense of the Indemnified Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.

Defense. If the facts relating any Indemnified Party learns of any matter which may give rise to a Loss arise out a Third claim for indemnification against an Indemnifying Party Claimunder this Article XI, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to then the Indemnified Party shall notify the Indemnifying Party thereof promptly and in any event within 15 days following its receipt five (5) Business Days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is materially prejudiced thereby. Once the Indemnified Party has given notice of such claimthe matter to the Indemnifying Party, elect the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense or the prosecution thereof, including defend against the employment matter in any manner it reasonably may deem appropriate. In the event the Indemnifying Party notifies the Indemnified Party (after the date the Indemnified Party has given notice of the matter) that the Indemnifying Party is assuming the defense of such matter, the Indemnifying Party shall defend the Indemnified Party against the matter with counsel or accountants, of its choice reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ its own counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereincase, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party's own expense, Party unless (ai) the employment thereof has of such counsel shall have been specifically authorized in writing by the Indemnity ObligorIndemnifying Party, (bii) the Indemnifying Party shall not have employed counsel to fully and properly take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) the Indemnified Party has been advised by counsel shall have reasonably satisfactory to the Indemnity Obligor concluded that there may be one or more legal are defenses available to it which that are different from or additional to those available to one or more of the Indemnity Obligor and Indemnifying Parties (in which case the reasonable judgment of such counsel it is advisable for such Indemnified Party Indemnifying Parties shall not have the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume direct the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place on behalf of the Indemnified Party as with respect to such different defenses), in any events or circumstances in respect of which events such fees and expenses shall be borne by the Indemnified Indemnifying Party. Assumption of the defense of any matter by the Indemnifying Party may have any shall not prejudice the right or of the Indemnifying Party to claim against at a later date that such third party relating action is not a proper matter for indemnification pursuant to such indemnified matterthis Article XI. The Indemnified Party shall cooperate not consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the Indemnity Obligor in prosecuting any subrogated claimwritten consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The Indemnity Obligor will take no action Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in connection with any claim that would adversely affect the matter releases the Indemnified Party from all Damages with respect thereto, without the written consent of the Indemnified PartyParty (not to be unreasonably withheld or delayed).

Defense. If In the facts relating event any third Party shall make a demand or claim or file or threaten to a Loss arise out a Third file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party Claimin respect of matters embraced by the indemnity under this Agreement, or if there is in the event that a potential Loss, damage or expense comes to the attention of any claim against a third party available Party in respect of matters embraced by virtue the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the circumstances of the Lossdemand, the Indemnity Obligor may, by giving claim or lawsuit. Within ten days after written notice to by the Indemnified Party within 15 days following its receipt of (the notice “Notice”) to an Indemnifying Party of such claimdemand, elect to assume claim or lawsuit, except as provided in the defense or next sentence, the prosecution thereof, including Indemnifying Party shall have the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyoption, at its sole cost and expense; provided, however, that during the interim to retain counsel for the Indemnified Party shall use its best efforts to take all action (defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossunreasonably be withheld. The Indemnified Party shall have the right right, at its own expense, to employ counsel separate from counsel employed by participate in the Indemnity Obligor in defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such action proceeding (including any impleaded parties) include both the Indemnifying Party and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (aii) the employment thereof has been specifically authorized of counsel by the Indemnity Obligor, (b) such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel reasonably satisfactory to the Indemnity Obligor chosen by it that there may be one or more legal defenses available to it such Indemnified Party which are different from or additional in addition to those available which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the Indemnity Obligor and in election of the reasonable judgment of such counsel it is advisable for such Indemnified Party, the Indemnifying Party will not have the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume continue the defense of such action demand, claim or lawsuit on behalf of such Indemnified Party and employ will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel reasonably satisfactory to retained by the Indemnified Party. Whether or not Party to undertake the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consentdefense. In the event of payment by that the Indemnity Obligor Indemnifying Party shall fail to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place respond within ten days after receipt of the Indemnified Party as to any events or circumstances in respect of which Notice, the Indemnified Party may have any right retain counsel and conduct the defense of such demand, claim or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with lawsuit, as it may in its sole discretion deem proper, at the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent sole cost and expense of the Indemnified Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s defense of the action is actually prejudiced by such failure.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the third Party Claim, or fails to notify the Indemnified Party of its best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementA) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (B) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to employ counsel separate from counsel employed by written advice of its counsel, that (x) there is a conflict of interest between the Indemnity Obligor Indemnifying Party and the Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment of such counsel it is advisable for such Indemnifying Party, then the Indemnified Party to employ separate counsel, or (c) shall have the Indemnity Obligor has failed right to assume and direct the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim. In such an event, the Indemnity Obligor Indemnifying Party shall be subrogated to pay the reasonable fees and shall stand in the place disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party as to any events or circumstances in respect of which nor the Indemnified Party may have any right settle or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with compromise any claim over the objection of the other, provided, however, that would adversely affect consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and provided further, that if the sole settlement relief payable to a Third Party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements.

Defense. (a) If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor mayIndemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claimParty, to elect to assume the defense of, or the prosecution thereoftake full responsibility for, such audit, investigation, action, claim or proceeding, including the employment of counsel or accountants, in each case reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but payment of the fees and expenses disbursements of such counsel shall be at counsel. If the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one declines or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed fails to assume the defense of such action and of, or take full responsibility for, the audit, investigation, action, claim or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within ten (10) Business Days following receipt by the Indemnifying Party of notice of the claim, then the Indemnified Party may employ counsel to represent or defend it in any such audit, investigation, action, claim or proceeding and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred. In any audit, investigation, action, claim or proceeding for which the Indemnifying Party has assumed the defense, the Indemnified Party shall have the right to participate in such matter and to retain its own counsel at the Indemnified Party's own expense (except that the Indemnifying Party shall be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest). The Indemnifying Party shall at all times use reasonable efforts to inform the Indemnified Party of the status of the defense of any matter the defense of which the Indemnifying Party has assumed and to cooperate in good faith with the Indemnified Party with respect to the defense of any such matter. (b) No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent, which shall not be unreasonably delayed or withheld, of the Indemnifying Party. No Indemnifying Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent, which shall not be unreasonably delayed or withheld, of the Indemnified Party, unless such settlement, compromise or consent (A) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of such claim, and (B) does not impose an injunction or other equitable relief upon the Indemnified Party. (c) Whether or not the Indemnity Obligor Indemnifying Party chooses to defend or prosecute such a claim, all the parties hereto Parties shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony testimony, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Indemnifying Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to all rights and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent remedies of the Indemnified Party.

Defense. If The Parties, working through the facts relating JSC, shall cooperate to defend any such claims under the strategy, terms and conditions as may be authorized by the JSC. The JSC shall designate one Party as the leading Party for such defense. The Parties shall make decisions with regard to such actions covered by this Section 9.6 jointly through the JSC in accordance with the provisions of Sections 2.5(b) and 2.5(c), provided that any unresolved disputes shall not be subject to settlement by expedited arbitration and, in the case of any unresolved dispute, each Party named as a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving defendant in such action shall be entitled upon written notice to the Indemnified Party within 15 days following defend itself in such matter independently by counsel of its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, own choice and at its cost and own expense; provided, however, that during the interim the Indemnified each Party shall use its best efforts inform the other Party of the progress of such defense [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to take Rule 406 of the Securities Act of 1933, as amended. and, if reasonably requested by the other Party, shall reasonably cooperate with the other Party. For so long as the Parties continue to pursue such matter jointly through the JSC, all costs and expenses of any defense actions under this Section 9.6(b) shall be [ * ]. In any action (not pursued jointly by the Parties through the JSC, the non-leading Party shall reasonably cooperate with the leading Party, including settlement) reasonably necessary if required to protect against further damage or loss with respect to the Lossconduct such defense, furnishing a power of attorney. The Indemnified non-leading Party shall have the right to employ counsel separate from counsel employed by confer, through the Indemnity Obligor JSC, with the leading Party in any such action defense and the leading Party shall consider in good faith such input from the non-leading Party. If either Party desires to participate thereinbe released from the cost-sharing obligation described above, but then such Party (a “Removed Party”) shall be entitled, upon thirty (30) days prior written notice to the fees JSC, to be released from sharing such costs and the matter shall thereafter be handled and pursued at the discretion of the continuing Party (a “Continuing Party”). Following the end of such thirty (30) day notice period, the Continuing Party shall bear all costs and expenses of such counsel shall be at for the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place continuation of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Removed Party shall promptly and reasonably cooperate with to support the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent defense efforts of the Indemnified Continuing Party. In any event, the Removed Party shall forego its rights to separate representation in any matter from which it has withdrawn.

Defense. If the facts relating to a Loss arise out a Third Except as otherwise provided herein, an Indemnifying Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, may elect to assume defend, at the defense or Indemnifying Party’s own cost and expense and by the prosecution thereof, including the employment of Indemnifying Party’s own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to defend such Third Party Claim, the Indemnifying Party shall, within ten (10) days after receiving notice of the Third Party Claim, notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts cooperate, at the cost and expense of the Indemnifying Party, in the defense of such Third Party Claim; provided that the Indemnified Party is hereby authorized (but not obligated) at any time after giving notice to the Indemnifying Party of such Third Party Claim but prior to receiving such notice from the Indemnifying Party to file any motion, answer or other pleading and to take all any other action (not including settlement) which the Indemnified Party or its counsel deem reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense’s interests. If any Indemnifying Party elects not to defend the Third Party Claim, unless (a) or fails to notify the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory of its election to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counseldo so as herein provided, or (c) the Indemnity Obligor has failed to assume otherwise abandons the defense of such action Third Party Claim, (and employ counsel reasonably satisfactory during any other period in which an Indemnifying Party has been given a reasonable opportunity to the Indemnified Party. Whether or assume, but has not the Indemnity Obligor chooses to defend or prosecute such claimassumed, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish of such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to Third Party Claim) then (i) the Indemnified Party may (without prejudice to any of its rights against an Indemnifying Party), compromise or defend such Third Party Claim and (ii) the reasonable costs and expenses of the Indemnified Party incurred in connection with any Loss arising out therewith shall be indemnifiable as “Indemnifiable Losses” by the Indemnifying Party pursuant to this Article VI. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnity Obligor Indemnified Party shall be subrogated required to and shall stand agree to any settlement, compromise or discharge of a Third Party Claim (1) that relates to the imposition of monetary damages only, (2) that the Indemnifying Party has recommended, (3) that by its terms obligates the Indemnifying Party to pay the full amount of the liability in the place of connection with such Third Party Claim (without regard to any limitations otherwise applicable hereunder), (4) that releases the Indemnified Party completely and (5) that would not otherwise adversely affect the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (but shall nonetheless remain liable for the fees and expenses of counsel incurred by the Indemnified party in defending such Third Party Claim as part of the “Indemnified Losses” hereunder) if the Third Party Claim is reasonably likely to result in the imposition of: (i) monetary damages in excess of 200% of the Indemnifying Party’s then remaining maximum liability hereunder or (ii) an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party. An Indemnified Party shall not settle or compromise any events or circumstances Action (to the extent such Indemnified Party is seeking indemnification in respect thereof) without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party elects to defend any Action, the Indemnified Party shall make available to the Indemnifying Party any Representatives or Information that are reasonably necessary or appropriate for such defense and such Representatives shall, when appropriate, furnish evidence, testimony and other assistance in connection with any such claim. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Parties may each participate, at its or their own expense, in the defense of such Third Party Claim; provided that if in the reasonable opinion of counsel to the Indemnified Party, there exists an actual or potential conflict of interest or differing defenses between the Indemnifying Party and the Indemnified Party with respect to such Third Party Claim, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party may have any right or claim against determines counsel is required (and such third party relating to such indemnified matter. The Indemnified Party amounts shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partybe deemed “Indemnifiable Losses” hereunder).

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to employ counsel separate from counsel employed by written advice of its counsel, that (x) there is a conflict of interest between the Indemnity Obligor Indemnifying Party and the Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expenseThird Party Claim, unless or (ay) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of such counsel Third Party Claim insofar as it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory relates to the Indemnified Party. Whether In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel to the Indemnifying Party or not Parties and the Indemnity Obligor chooses to defend or prosecute such claim, all Indemnified Party provided that the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor Indemnifying Party shall not be liable for any settlement the fees and expenses of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which nor the Indemnified Party may have settle or compromise any right or claim against such (unless the sole relief payable to a third party relating in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim and the settlement or compromise includes a complete release of the other party or parties hereto) over the objection of the other, provided, however, that consent to settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such indemnified matterThird Party Claim. The If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall cooperate with make available to the Indemnity Obligor in prosecuting Indemnifying Party any subrogated claim. The Indemnity Obligor will take no action in connection with personnel or any claim books, records or other documents within its control that would adversely affect are reasonably necessary or appropriate for such defense, subject to the Indemnified Party without the consent receipt of the Indemnified Partyappropriate confidentiality agreements.

Defense. If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to Indemnitor may assume the defense or the prosecution thereofthereof by prompt written notice to the Indemnitee and the affected Protected Party, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Indemnitee and the affected Protected Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor Indemnitor in any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnitee and the affected Protected Party shall be at their expense. The Indemnitor shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to Indemnitor does not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof from the Indemnitee or any Protected Party, the Indemnitee and the affected Protected Party may settle such action claim without the Indemnitor's consent. The Indemnitor shall not agree to a settlement of any claim which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of any Protected Party without the Indemnitee's and employ counsel reasonably satisfactory to the Indemnified affected Protected Party's prior written consent. Whether or not the Indemnity Obligor chooses Indemnitor does choose to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony testimony, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor Indemnitor shall be subrogated to all rights and shall stand in remedies of any Protected Party, except to the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim extent they apply against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified another Protected Party.

Defense. If the facts relating to a Loss arise out claim by a third party (a "Third Party Claim, or if there ") is any claim made against an SFI Indemnitee arising out of a third party available by virtue of matter for which the circumstances of the LossSFI Indemnitee is entitled to be indemnified pursuant to Section 5 hereof, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, Preferred Shareholders may elect to assume the defense or the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of a commenced lawsuit or proceeding) after receipt of a Notice of Claim to undertake to conduct and control, including through counsel of their own choosing as designated by the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, Shareholder Representative and at its cost their sole risk and expense, the good faith settlement or defense of such claim, and the SFI Indemnitee(s) shall cooperate fully with the Preferred Shareholders in connection therewith; providedprovided that the SFI Indemnitee(s) shall be entitled to participate in such settlement or defense through counsel chosen by it, however, provided that during the fees and expenses of such counsel shall be borne by the SFI Indemnitee(s); and provided further that the Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or (b) the Preferred Shareholders provide commercially reasonable evidence that the Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification obligations. During the interim the Indemnified Party SFI Indemnitee shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the alleged Loss. The Indemnified Party Preferred Shareholders shall have obtain the right written consent of the SFI Indemnitee prior to employ counsel separate from counsel employed by ceasing to defend, settling or otherwise disposing of such claim if as a result thereof the Indemnity Obligor SFI Indemnitee would become subject to injunctive, declaratory or other equitable relief or the business of the SFI Indemnitee would be materially adversely affected in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Partymanner. Whether or not the Indemnity Obligor chooses Preferred Shareholders choose so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial trials as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the provision of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information. The Indemnity Obligor Preferred Shareholders shall not be liable for any settlement of any such claim effected without their prior written consent, which shall not be unreasonably withheld. However, if the Preferred Shareholders, fail to defend such claim within the time period necessary to preserve the rights and defense of the SFI Indemnitee, the SFI Indemnitee will have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Preferred Shareholders, subject to the right of the Preferred Shareholders to assume the defense of such claim at any time within the 30-day time period after receiving Notice of Claim . If a claim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, the Preferred Shareholders, if the Preferred Shareholders elect through the Shareholder Representative to assume defense of such proceeding after receiving notice hereunder, shall be entitled at their sole expense to do any of the following: (i) procure for SFI, Clarus CSA, Inc. and their licensees the unrestricted right to continue using the Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the third party's infringement claim in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the software being enjoined or otherwise restricted, or (iv) pay the indemnified party's claim as provided in this Agreement, provided that any settlement under this sentence shall require SFI's prior written approval which shall not be unreasonably withheld. SFI shall comply with any settlement or court order made in connection with such proceeding in the foregoing sentence provided that such compliance by SFI shall not limit the Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld. In Before any claim may be brought against any of the event Preferred Shareholders hereunder, or under the Merger Agreement, all the Escrow Funds shall be used first to pay any claims made under Article IX of payment by the Indemnity Obligor Merger Agreement or this Agreement, and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the Indemnified Party extent the Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for which they are liable hereunder without consent of SFI so long as the payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place excess of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party maximum liability amounts shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyrequire SFI's prior written consent.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses obligation to defend against, negotiate, settle or prosecute otherwise deal with any Third-Party Claim in good faith but otherwise in such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial manner as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out deems appropriate and to be represented by counsel of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matterits own choice. The Indemnified Party shall cooperate not admit any liability with respect thereto or settle, compromise, pay or discharge the Indemnity Obligor same without the consent of the Indemnifying Party (or, in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the case of indemnification under Section 7.1(b), the Company Stockholder Representative), which consent shall not be unreasonably withheld, so long as the Indemnified Party is contesting or defending the same with reasonable diligence and in good faith; provided, however, that the Indemnifying Party may participate in any proceeding with counsel of its choice and at its expense. In the event the Indemnified Party fails to defend against, negotiate, settle or otherwise deal with such Third Party Claim as provided above in this Section 7.3(b), then the Indemnifying Party shall have the right to defend against, negotiate, settle or otherwise deal with the Third Party Claim in good faith and otherwise in such manner as the Indemnifying Party deems appropriate; provided, however, that the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim (A) in the case of a settlement, unless the settlement includes, as an unconditional term thereof, the giving by the third party of a release of the Indemnified Party from all liability in respect of such Third-Party Claim (other than pursuant to the terms of the settlement), (B) if the judgment or settlement involves any injunctive or other equitable relief, without the prior written consent of the Indemnified Party, and (C) if the judgment or settlement with respect to an Indemnified Party involves any amount in excess of the indemnification obtained by the Indemnified Party hereunder, without the prior written consent of the Indemnified Party.

Defense. If the facts relating pertaining to a Loss by a Buyer Indemnified Party or a Company Indemnified Party, as the case may be, arise out a Third Party Claimof the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified applicable Indemnifying Party within 15 days following its receipt of the notice of such claim, elect to may assume the defense or the prosecution thereofthereof by written notice to such Buyer Indemnified Party or Seller Indemnified Party, including the employment of counsel or accountants, accountants reasonably satisfactory to the such Buyer Indemnified Party or Seller Indemnified Party, at its the Indemnifying Party's cost and expense; provided, however, that during the interim the . Such Buyer Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Seller Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor such Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed by such Buyer Indemnified Party or Seller Indemnified Party shall be at its expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld. The Indemnifying Party shall not agree to a settlement of any claim without the prior written consent of the Buyer Indemnified Party or Seller Indemnified Party's own expense, unless (a) as the employment thereof has been specifically authorized by the Indemnity Obligorcase may be, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may which consent will not be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Partyunreasonably withheld. Whether or not the Indemnity Obligor Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony testimony, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Indemnifying Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to all rights and shall stand in the place remedies of the Buyer Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Seller Indemnified Party, as the case may be.

Defense. If the facts relating to a Loss arise out a Third Party Claimany claim, demand or if there liability is asserted by any claim against a third party available by virtue against any Indemnified Party, the Indemnifying Party shall have the right and shall upon the written request of the circumstances Indemnified Party, defend any Actions brought against the Indemnified Party in respect of the Loss, the Indemnity Obligor may, by giving written notice any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party within 15 days following and, in the case of a Tax-related Action, tax advisors of its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, choice reasonably satisfactory acceptable to the Indemnified Party. In any such action or proceeding, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinretain its own counsel, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, expense unless (a) the employment thereof has been specifically authorized by Indemnifying Party and the Indemnity ObligorIndemnified Party mutually agree in writing to the retention of such counsel, or (b) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor Party, and in the reasonable judgment of such counsel it is advisable for such the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to employ separate counselpotential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense (i) it shall be conclusively established for purposes of this Agreement that the claims made in the Action are within the scope of and subject to indemnification but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b); and (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party's written consent (which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. If written notice is given to an Indemnifying Party of the commencement of any Action and the Indemnifying Party does not, within twenty (c20) days after the Indemnity Obligor has failed Indemnified Party's written notice is given, give written notice to the Indemnified Party of its election to assume the defense of such action and employ counsel reasonably satisfactory to Action, the Indemnifying Party shall be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. Whether or not In connection with the Indemnity Obligor chooses to defend or prosecute such defense of any claim, all each Party shall make available to the parties hereto shall cooperate in the defense Party controlling such defense, any books, records or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be other documents within its control that are reasonably requested in connection therewith. The Indemnity Obligor shall not be liable the course of or necessary or appropriate for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partydefense.

Defense. If OF CLAIMS -- The Company shall be entitled to participate in the facts relating to a Loss arise out a Third Party Claim, defense of any Indemnifiable Claim or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of with counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expenseIndemnitee; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss if Indemnitee believes, after consultation with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed selected by the Indemnity Obligor in any such action and to participate thereinIndemnitee, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless that (a) the employment thereof has been specifically authorized use of counsel chosen by the Indemnity ObligorCompany to represent Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties in any such Indemnified Party has been advised by counsel reasonably satisfactory to Indemnifiable Claim (including any impleaded parties) include both the Indemnity Obligor Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to it which him or her that are different from or additional in addition to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, Company or (c) any such representation by such counsel would be precluded under the Indemnity Obligor has failed applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to assume retain separate counsel (but not more than one law firm plus, if applicable, local counsel with respect to any particular Indemnifiable Claim) at the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithCompany's expense. The Indemnity Obligor Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company's prior written consent. The Company shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim that Indemnitee is or could have been a party unless such claim effected without settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as consent to any events or circumstances in respect proposed settlement; provided, however, that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified PartyIndemnitee.

Defense. (a) If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 thirty (30) days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. ; provided further that the reasonable costs and expenses incurred by such Indemnified Party in protecting against further damage will be considered a Loss. (b) The Indemnified Party shall have the right to participate in such defense and to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be not be considered a Loss and shall be at the Indemnified Party's ’s own expense, expense unless (aA) the employment thereof has been specifically authorized counsel selected by the Indemnity Obligor shall be unwilling or unable to represent the Indemnified Party, or (B) a legal conflict of interest exists between the Indemnity Obligor and the Indemnified Party such that joint representation would be inappropriate, or (C) a court of competent jurisdiction determines that the Indemnity Obligor failed or is failing to vigorously prosecute or defend such claims, in each of which cases the reasonable fees and expenses of separate counsel engaged by the Indemnified Party shall also be a Loss for which indemnity is provided by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or . (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial trials as may be reasonably requested in connection therewith. If the Indemnity Obligor assumes the defense or prosecution of such claim, the Indemnity Obligor shall have the right to settle the claim if such settlement involves only money damages; provided that the Indemnity Obligor shall obtain the prior written consent of the Indemnified Party before entering into any settlement of a claim if, as a result of such settlement, injunctive or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudice. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent, which consent shall not be unreasonably withheld or delayed. In the event and to the extent of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claimthird party claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party to the extent of such payment as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect , and the reasonable fees and expenses incurred by the Indemnified Party without in providing such cooperation shall also be a Loss for which indemnity is provided by the consent of the Indemnified PartyIndemnity Obligor.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there any such action is any claim brought against a third party available by virtue of the circumstances of the Lossan indemnified party, the Indemnity Obligor may, by giving written notice indemnifying Party will be entitled to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect participate in and to assume the defense or thereof to the prosecution extent that it may wish, and after notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified indemnifying Party shall use its best efforts not be liable to take all action (not including settlement) reasonably necessary to protect against further damage such indemnified party for any legal or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed other expenses subsequently incurred by the Indemnity Obligor latter in any such action and to participate therein, but connection with the fees and expenses of such counsel shall be at defense thereof unless the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory claim. Notwithstanding any of the foregoing to the Indemnified contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying Party fails to assume such defense, the expenses of such defense to be paid by the indemnifying Party. Whether or not As a condition to the Indemnity Obligor chooses to defend or prosecute such claimindemnifying Party’s obligations hereunder, all the parties hereto shall indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or prosecution thereof and shall furnish such recordsenter into any settlement with respect to a claim either (a) without the consent of the indemnified party, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which consent shall not be liable for unreasonably withheld, delayed or conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with PURCHASE AND SALE AGREEMENT 39 respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claimaction, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect defense of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party has been assumed by an indemnifying Party, without the consent of the Indemnified such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there any such action is any claim brought against a third party available by virtue of the circumstances of the Lossan indemnified party, the Indemnity Obligor may, by giving written notice indemnifying party will be entitled to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect participate in and to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory thereof to the Indemnified Partyextent that it may wish, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to such indemnified party, and after such notice from the Indemnity Obligor that there may indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be one liable to such indemnified party for any legal or more legal defenses available to it which are different from or additional to those available to other expenses subsequently incurred by the Indemnity Obligor and latter in connection with the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) defense thereof unless the Indemnity Obligor indemnifying party has failed to assume the defense of such action claim and to employ counsel reasonably satisfactory to such indemnified person. Notwithstanding any of the Indemnified Party. Whether or not foregoing to the Indemnity Obligor chooses contrary, the indemnified party will be entitled to defend or prosecute such claim, all the parties hereto shall cooperate in select its own counsel and assume the defense of any action brought against it if the indemnifying party fails to select counsel reasonably satisfactory to the indemnified party, the expenses of such defense is to be paid by the indemnifying party. No indemnifying party shall consent to entry of any judgment or prosecution thereof and shall furnish such recordsenter into any settlement with respect to a claim without the consent of the indemnified party, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which consent shall not be liable for unreasonably withheld, or unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claimaction, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect defense of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party has been assumed by an indemnifying party, without the consent of the Indemnified Partysuch indemnifying party, which consent shall not be unreasonably withheld.

Defense. If In the facts relating to a Loss arise out a event any Third Party Claimshall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity under this Agreement, or if there is in the event that a potential Loss, damage or expense comes to the attention of any claim against a third party available Party in respect of matters embraced by virtue the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the circumstances of the Lossdemand, the Indemnity Obligor may, by giving claim or lawsuit. Within thirty (30) days after written notice to by the Indemnified Party within 15 days following its receipt of (the notice “Notice”) to an Indemnifying Party of such claimdemand, elect to assume claim or lawsuit, except as provided in the defense or next sentence, the prosecution thereof, including Indemnifying Party shall have the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyoption, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; providedprovided that counsel who will conduct the defense of such demand, however, that during the interim claim or lawsuit will be approved by the Indemnified Party shall use its best efforts to take all action (whose approval will not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossunreasonably be withheld. The Indemnified Party shall have the right right, at its own expense, to employ counsel separate from counsel employed by participate in the Indemnity Obligor in defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, if (i) the named parties to any such action proceeding (including any impleaded parties) include both the Indemnifying Party and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (aii) the employment thereof has been specifically authorized of counsel by the Indemnity Obligor, (b) such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel reasonably satisfactory to the Indemnity Obligor chosen by it that there may be one or more legal defenses available to it such Indemnified Party which are different from or additional in addition to those available which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the Indemnity Obligor and in election of the reasonable judgment of such counsel it is advisable for such Indemnified Party, the Indemnifying Party will not have the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume continue the defense of such action demand, claim or lawsuit on behalf of such Indemnified Party and employ will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel reasonably satisfactory to retained by the Indemnified Party. Whether or not Party to undertake the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consentdefense. In the event of payment by that the Indemnity Obligor Indemnifying Party shall fail to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place respond within thirty (30) days after receipt of the Indemnified Party as to any events or circumstances in respect of which Notice, the Indemnified Party may have any right retain counsel and conduct the defense of such demand, claim or claim against lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such third party relating to indemnification, except to the extent the Indemnifying Party’s defense of the action is actually prejudiced by such indemnified matterfailure. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent assumption of the Indemnified Partydefense, or the non-assumption of the defense, by the purported Indemnifying Party will not affect such party’s right to dispute its obligation to provide indemnification hereunder.

Defense. If In the facts relating event any Person or entity not a party to this Agreement shall make a Loss arise out a Third demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party Claimin respect of matters embraced by the indemnity under this Agreement, or if there is in the event that a potential Loss, damage or expense comes to the attention of any claim against a third party available Party in respect of matters embraced by virtue the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the circumstances of the Lossdemand, the Indemnity Obligor may, by giving claim or lawsuit. Within ten days after written notice to by the Indemnified Party within 15 days following its receipt of (the notice "Notice") to an Indemnifying Party of such claimdemand, elect to assume claim or lawsuit, except as provided in the defense or next sentence, the prosecution thereof, including Indemnifying Party shall have the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyoption, at its sole cost and expense; provided, however, that during the interim to retain counsel for the Indemnified Party shall use its best efforts to take all action (defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossunreasonably be withheld. The Indemnified Party shall have the right right, at its own expense, to employ counsel separate from counsel employed by participate in the Indemnity Obligor in defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such action proceeding (including any impleaded parties) include both the Indemnifying Party and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (aii) the employment thereof has been specifically authorized of counsel by the Indemnity Obligor, (b) such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel reasonably satisfactory to the Indemnity Obligor chosen by it that there may be one or more legal defenses available to it such Indemnified Party which are different from or additional in addition to those available which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the Indemnity Obligor and in election of the reasonable judgment of such counsel it is advisable for such Indemnified Party, the Indemnifying Party will not have the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume continue the defense of such action demand, claim or lawsuit on behalf of such Indemnified Party and employ will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel reasonably satisfactory to retained by the Indemnified Party. Whether or not Party to undertake the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consentdefense. In the event of payment by that the Indemnity Obligor Indemnifying Party shall fail to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place respond within ten days after receipt of the Indemnified Party as to any events or circumstances in respect of which Notice, the Indemnified Party may have any right retain counsel and conduct the defense of such demand, claim or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with lawsuit, as it may in its sole discretion deem proper, at the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent sole cost and expense of the Indemnified Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.

Defense. If the facts relating (i) Within thirty (30) days after delivery of an Indemnification Notice with respect to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor Indemnifying Party may, by giving upon written notice thereof to the Indemnified Party within 15 days following its receipt Party, assume control of the notice defense of such claim, elect to assume the defense or the prosecution thereof, including the employment of Third Party Claim with counsel or accountants, reasonably satisfactory to the Indemnified Party; provided that (A) the Indemnifying Party may only assume control of such defense if (1) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other Liabilities that may be assessed against the Indemnified Party in connection with such Third Party Claim constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article IX and (2) the ad damnum in such Third Party Claim, taken together with the estimated costs of defense thereof and the Claimed Amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the amount of Losses for which the Indemnifying Party is potentially liable under this Article IX in connection with such Third Party Claim, and (B) the Indemnifying Party may not assume control of the defense of any Third Party Claim (I) by a Governmental Entity involving criminal Liability or (II) in which equitable relief (other than incidental equitable relief in any pleadings seeking such remedies as may be deemed appropriate by the court) is sought against the Indemnified Party or any of its Affiliates. The Indemnified Party is hereby authorized (but not obligated) prior to and during the thirty (30) day period referred to in the preceding sentence to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect its interests. (ii) If the Indemnifying Party so elects to assume the defense of a Third Party Claim as permitted under Section 9.4(b)(i), then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof unless the Indemnified Party reasonably concludes (upon the advice of outside counsel) that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Claim, in each case such that it is inappropriate for a single outside counsel to represent both parties. Subject to Section 9.4(b)(i), the Non-controlling Party may participate in the defense of any Third Party Claim at its cost and expense; providedown expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that during the interim Controlling Party shall control such defense in all respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to the Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Indemnified Party shall use and its best efforts to take all action Affiliates from further Liability, (not including settlement3) reasonably necessary to protect against further damage involves no admission of wrongdoing by the Indemnified Party or loss with respect any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the LossIndemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. The If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall have the right to employ counsel separate from counsel employed by defend, compromise or settle such Third Party Claim or consent to the Indemnity Obligor in any entry of judgment with respect to such action and to participate therein, but the fees and expenses of such counsel shall be Third Party Claim at the Indemnified expense of the Indemnifying Party's own expense; provided, unless (a) however, the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory shall not compromise or settle such Third Party Claim or consent to the Indemnity Obligor that there may be one or more legal defenses available entry of judgment with respect to it such Third Party Claim without the prior written consent of the Indemnifying Party, which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor consent shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claimunreasonably withheld, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events conditioned or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partydelayed.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there any such action is any claim brought against a third party available by virtue of the circumstances of the Lossan indemnified party, the Indemnity Obligor mayindemnifying Party will be entitled to participate in and to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the Indemnified Party indemnified party within 15 thirty (30) days following of its receipt of the written notice of such claimaction from the indemnified party, elect and after such notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified indemnifying Party shall use its best efforts not be liable to take all action (not including settlement) reasonably necessary to protect against further damage such indemnified party for any legal or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed other expenses subsequently incurred by the Indemnity Obligor latter in any such action and to participate therein, but connection with the fees and expenses of such counsel shall be at defense thereof unless the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed PURCHASE AND SALE AGREEMENT -49- to assume the defense of such action claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the Indemnified foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified party in connection with the defense of such action or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the indemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. Whether or not As a condition to the Indemnity Obligor chooses to defend or prosecute such claimindemnifying Party’s obligations hereunder, all the parties hereto shall indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable out of pocket expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or prosecution thereof and shall furnish such recordsenter into any settlement with respect to a claim either (a) without the consent of the indemnified party, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which consent shall not be liable for unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claimaction, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect defense of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party has been assumed by an indemnifying Party, without the consent of the Indemnified such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there any such action is any claim brought against a third party available by virtue of the circumstances of the Lossan indemnified party, the Indemnity Obligor may, by giving written notice indemnifying Party will be entitled to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect participate in and to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory thereof to the Indemnified Partyextent that it may wish, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to such indemnified party, and after notice from the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified indemnifying Party to employ separate counselsuch indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any legal or (c) other expenses subsequently incurred by the Indemnity Obligor latter in connection with the defense thereof unless the indemnifying Party has failed to assume the defense of such action claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the Indemnified foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying Party fails to assume or diligently prosecute such defense, the expenses of such defense to be paid by the indemnifying Party. Whether or not As a condition to the Indemnity Obligor chooses to defend or prosecute such claimindemnifying Party’s obligations hereunder, all the parties hereto shall indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or prosecution thereof and shall furnish such recordsenter into any settlement with respect to a claim either (a) without the consent of the indemnified party, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which consent shall not be liable for unreasonably withheld, or (b) unless such judgment or settlement involves only the payment of money damages by the indemnifying Party, does not impose an injunction or other equitable relief or any other obligations upon the indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claimaction, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect defense of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party has been assumed and is being diligently prosecuted by an indemnifying Party, without the consent of the Indemnified such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If the facts relating any Proceeding referred to a Loss arise out a Third Party Claim, or if there in Section 10.10.1 is any claim brought against a third an indemnified party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written and it gives notice to the Indemnified Party within 15 days following its receipt indemnifying party of the notice commencement of such claimProceeding, elect the indemnifying party will, unless the claim is a Tax Claim, be entitled to assume the defense or the prosecution thereofparticipate in such Proceeding and, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyextent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, at or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its cost financial capacity to defend such Proceeding and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss provide indemnification with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinProceeding), but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ Proceeding with counsel reasonably satisfactory to the Indemnified Party. Whether or not indemnified party and, after notice from the Indemnity Obligor chooses indemnifying party to defend or prosecute such claim, all the parties hereto shall cooperate in indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel or prosecution thereof any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and shall furnish subject to indemnification; (ii) no compromise or settlement of such records, information and testimony and shall attend such conferences, discovery proceedings and trial as claims may be reasonably requested effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in connection therewith. The Indemnity Obligor shall not be liable for full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of any such claim claims effected without its prior written consent. In If notice is given to an indemnifying party of the event commencement of payment any Proceeding and the indemnifying party does not, within ten days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyparty.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to employ counsel separate from counsel employed by written advice of its counsel, that (x) there is a conflict of interest between the Indemnity Obligor Indemnifying Party and the 57 Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of such counsel it is advisable for Third Party Claim. In such an event, the Indemnifying Party shall indemnify the Indemnified Party for the fees and disbursements of counsel to employ separate counseleach of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (cunless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the Indemnity Obligor has failed objection of the other; PROVIDED, HOWEVER, that consent to assume settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such action and employ counsel reasonably satisfactory to Third Party Claim. If the Indemnified Party. Whether or not the Indemnity Obligor Indemnifying Party chooses to defend or prosecute such any claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding anything to the contrary contained in connection this paragraph (b), in the event prompt action is required with any Loss arising out respect to the defense of a Third Party Claim, the Indemnity Obligor Indemnified Party shall, subject to the terms and conditions of this Article X, have the right to assume the defense of such Third Party Claim; PROVIDED, HOWEVER, that in the event that the Indemnifying Party subsequently elects to assume the defense of such Third Party Claim, then the provisions set forth in this paragraph (b) shall be subrogated applicable and the Indemnifying Party shall, subject to the terms and shall stand in the place conditions of this Article X, indemnify the Indemnified Party as to for any events or circumstances in respect of which costs and expenses incurred by the Indemnified Party may have any right or claim against prior to the date the Indemnifying Party assumes control of such third party relating to such indemnified matter. The Indemnified Third Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified PartyClaim.

Defense. If In the facts relating to a Loss arise out a event any Third Party Claimshall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity under this Agreement, or if there is in the event that a potential Loss, damage or expense comes to the attention of any claim against a third party available Party in respect of matters embraced by virtue the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the circumstances of the Lossdemand, the Indemnity Obligor may, by giving claim or lawsuit. Within thirty (30) days after written notice to by the Indemnified Party within 15 days following its receipt of (the notice “Notice”) to an Indemnifying Party of such claimdemand, elect to assume claim or lawsuit, except as provided in the defense or next sentence, the prosecution thereof, including Indemnifying Party shall have the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyoption, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; providedprovided that counsel who will conduct the defense of such demand, however, that during the interim claim or lawsuit will be approved by the Indemnified Party shall use its best efforts to take all action (whose approval will not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossunreasonably be withheld. The Indemnified Party shall have the right right, at its own expense, to employ counsel separate from counsel employed by participate in the Indemnity Obligor in defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, if (i) the named parties to any such action proceeding (including any interpleaded parties) include both the Indemnifying Party and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (aii) the employment thereof has been specifically authorized of counsel by the Indemnity Obligor, (b) such Indemnified Party has been authorized in writing by the Indemnifying Party, which authorization will not be unreasonably withheld, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel reasonably satisfactory to the Indemnity Obligor chosen by it that there may be one or more legal defenses available to it such Indemnified Party which are different from or additional in addition to those available which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the Indemnity Obligor and in election of the reasonable judgment of such counsel it is advisable for such Indemnified Party, the Indemnifying Party will not have the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume continue the defense of such action demand, claim or lawsuit on behalf of such Indemnified Party and employ will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel reasonably satisfactory to retained by the Indemnified Party. Whether or not Party to undertake the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consentdefense. In the event of payment by that the Indemnity Obligor Indemnifying Party shall fail to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place respond within thirty (30) days after receipt of the Indemnified Party as to any events or circumstances in respect of which Notice, the Indemnified Party may have any right retain counsel and conduct the defense of such demand, claim or claim against lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such third party relating to indemnification, except to the extent the Indemnifying Party’s defense of the action is actually prejudiced by such indemnified matterfailure. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent assumption of the Indemnified Partydefense or the non-assumption of the defense, by the purported Indemnifying Party will not affect such party’s right to dispute its obligation to provide indemnification hereunder.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its best efforts election to take all action do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to employ counsel separate from counsel employed by written advice of its counsel, that (x) there is a conflict of interest between the Indemnity Obligor Indemnifying Party and the Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of such counsel it is advisable for Third Party Claim. In such an event, the Indemnifying Party shall indemnify the Indemnified Party for the fees and disbursements of counsel to employ separate counseleach of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim, (cunless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the Indemnity Obligor has failed objection of the other; provided, however, that consent to assume settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such action and employ counsel reasonably satisfactory to Third Party Claim. If the Indemnified Party. Whether or not the Indemnity Obligor Indemnifying Party chooses to defend or prosecute such any claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding anything to the contrary contained in connection this paragraph (b), in the event prompt action is required with any Loss arising out respect to the defense of a Third Party Claim, the Indemnity Obligor Indemnified Party shall, subject to the terms and conditions of this Article IX, have the right to assume the defense of such Third Party Claim; provided, however, that in the event that the Indemnifying Party subsequently elects to assume the defense of such Third Party Claim, then the provisions set forth in this paragraph (b) shall be subrogated applicable and the Indemnifying Party shall, subject to the terms and shall stand in the place conditions of this Article IX, indemnify the Indemnified Party as to for any events or circumstances in respect of which costs and expenses incurred by the Indemnified Party may have any right or claim against prior to the date the Indemnifying Party assumes control of such third party relating to such indemnified matter. The Indemnified Third Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified PartyClaim.

Defense. If Except as provided in Section 11.6, if within 10 calendar days after an Indemnitee provides Notice to the facts relating to a Loss arise out a Indemnifying Party of any Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of Indemnitee receives Notice from the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of that such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed elected to assume the defense of such action and employ counsel reasonably satisfactory to Third Party Claim, the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof. The Indemnitee shall be entitled to participate in the defense of such Third Party Claim and to employ counsel for such purpose at the sole cost and expense of Indemnitee. Each Party shall in good faith consult with the other Party regarding the defense of any Third Party Claim upon the other Party’s reasonable request from time to time. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any such claim effected without its prior written consentThird Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder or which would impose any injunctive or other equitable remedy on the Indemnitee. In the event of payment by the Indemnity Obligor If a firm offer is made to the Indemnified Party in connection with any Loss arising out of settle a Third Party ClaimClaim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnitee) and the Indemnifying Party desires to accept and agree to such offer, the Indemnity Obligor shall be subrogated Indemnifying Party will give Notice to and shall stand the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 10 calendar days after its receipt of such Notice, the Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the place maximum liability of the Indemnified Indemnifying Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Third Party shall cooperate with Claim will be the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnified Party without Indemnitee up to the consent date of the Indemnified Partysuch notice.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there Claim is any claim made against a third party available by virtue of the circumstances of the LossIndemnified Party, the Indemnity Obligor mayIndemnifying Party shall be entitled to participate in the defense thereof and, by giving written notice to if the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claimso chooses, elect to assume the defense or thereof with counsel selected by the prosecution thereof, including the employment of counsel or accountants, Indemnifying Party and reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume and thereafter actively and in good faith defend the defense of a Third Party Claim, at its cost and expense; provided, however, that during the interim Indemnifying Party shall not be liable to the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss for legal expenses subsequently incurred by the Indemnified Party in connection with respect to the Lossdefense thereof. The If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor in any Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such action and to participate therein, but defense. The Indemnifying Party shall be liable for the fees and expenses of such counsel shall be at employed by the Indemnified Party's own expense, unless (a) Party for any period during which the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to not assumed the Indemnity Obligor that there may be one defense thereof or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor actively and in good faith defend such Third Party Claim. If the reasonable judgment of such counsel it is advisable for such Indemnified Indemnifying Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claimany Third Party Claim, all the parties hereto shall cooperate in the defense or prosecution thereof of such Third Party Claim. Such cooperation shall include the retention and shall furnish (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of Records that are reasonably relevant to such recordsThird Party Claim, and making employees available on a mutually convenient basis to provide additional information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement explanation of any such claim effected without its prior written consentmaterial provided hereunder. In If the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim (but in no event of payment by the Indemnity Obligor more than five (5) business days), chooses not to the Indemnified Party in connection with any Loss arising out assume defense of a Third Party ClaimClaim or fails to defend such Third Party Claim actively and in good faith, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as shall (upon further notice) have the right to any events undertake the defense, compromise or circumstances in settlement of such Third Party Claim or consent to the entry of judgment with respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Third Party Claim on behalf of, and for the account and risk of, the Indemnifying Party, and the Indemnifying Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take have no action in connection with any claim that would adversely affect the Indemnified Party without the consent of right to challenge the Indemnified Party’s defense, compromise, settlement or consent to judgment.

Defense. If the facts relating any Proceeding referred to a Loss arise out a Third Party Claim, or if there in Section 10.9.1 is any claim brought against a third an indemnified party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written and it gives notice to the Indemnified Party within 15 days following its receipt indemnifying party of the notice commencement of such claimProceeding, elect the indemnifying party will, unless the claim is a Tax Claim, be entitled to assume the defense or the prosecution thereofparticipate in such Proceeding and, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyextent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, at or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its cost financial capacity to defend such Proceeding and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss provide indemnification with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinProceeding), but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ Proceeding with counsel reasonably satisfactory to the Indemnified Party. Whether or not indemnified party and, after notice from the Indemnity Obligor chooses indemnifying party to defend or prosecute such claim, all the parties hereto shall cooperate in indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel or prosecution thereof any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and shall furnish subject to indemnification; (ii) no compromise or settlement of such records, information and testimony and shall attend such conferences, discovery proceedings and trial as claims may be reasonably requested effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in connection therewith. The Indemnity Obligor shall not be liable for full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of any such claim claims effected without its prior written consent. In If notice is given to an indemnifying party of the event commencement of payment any Proceeding and the indemnifying party does not, within ten (10) days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyparty.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor mayshall, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in counsel to each of the reasonable judgment of such counsel it is advisable for such Indemnified Party and the Indemnity Obligor shall have advised such parties that representation of both parties by the same counsel would be inappropriate due to employ separate counsel, actual or potential differing interests between them or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Partyaction. Whether or not the Indemnity Obligor chooses to defend defends or prosecute prosecutes such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party.

Defense. If The party to provide indemnification (the facts relating “Indemnifying Party”) shall (subject to a Loss arise out a Third Party Claimthe limitations set forth in subsection 7.2(c) below and subject to the following sentence), or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor mayat its own expense, by giving written notice to the Indemnified Party within 15 days following its receipt Party, assume the entire control of, subject to the right of the notice Indemnified Party to participate (at its expense and with counsel of its choice) in, the defense of the Third Party Claim as to which such Notice of Claim has been given. All expenses, fees, and costs associated with the defense of such claim, elect Third Party Claim by the Representative on behalf of the Stockholders as Indemnifying Party shall be first paid from the Escrowed Cash and then (should such amount be fully extinguished) from the proceeds from the sale of the Escrowed Shares. If the Indemnifying Party is permitted to assume the defense or of a Third Party Claim: (i) the prosecution thereof, including Indemnifying Party shall diligently and in good faith defend such Third Party Claim and shall keep Indemnifying Party reasonably informed of the employment status of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expensesuch defense; provided, however, that during in the interim case of any settlement providing for remedies other than monetary damages for which indemnification is provided, the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Indemnifying Party shall have the right to employ counsel separate from counsel employed by approve the Indemnity Obligor settlement, which approval will not be unreasonably withheld, conditioned, or delayed; (ii) Indemnified Party shall cooperate fully in all respects with the Indemnifying Party in any such action and to participate thereindefense, but compromise or settlement thereof, including, without limitation, the fees and expenses selection of such counsel (which counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory acceptable to the Indemnified Party. Whether ), and Indemnified Party shall make available to the Indemnifying Party all pertinent information and documents under its control; and (iii) for purposes of clarification, to the extent that Stockholders are required to act as an Indemnifying Party pursuant to this Article VII, at such time after the Escrowed Cash is fully exhausted, the Representative shall be entitled on their behalf, without reference to and regardless of any lock ups or not restrictions that would otherwise be applicable to the Indemnity Obligor chooses Escrowed Shares (and subject to defend applicable securities laws), to sell or prosecute pledge such claim, all Escrowed Shares at any time during the parties hereto shall cooperate Escrow Period to assist in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithof and/or to pay any Losses. The Indemnity Obligor shall not be liable for any settlement parties agree to take all steps necessary, including execution of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor subsequent documentation, in order to the Indemnified Party enable Representative to act in connection accordance with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partythis Article VII.

Defense. If With respect to any Proceeding as to which Indemnitee notifies the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue Company of the circumstances commencement thereof, the Company may participate in the Proceeding at the Company’s own expense. The Company may also, if the Company so elects, assume the defense of any such Proceeding with counsel reasonably satisfactory to Indemnitee except (i) a Proceeding brought by or on behalf of the Loss, Company, (ii) a Proceeding in which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Indemnity Obligor may, by giving written notice to Company in the Indemnified Party within 15 days following its receipt defense of the notice Proceeding, (iii) a Proceeding continuing or commenced after a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such claimChange in Control) in which Independent Counsel approves Indemnitee’s providing Indemnitee’s own defense with counsel selected by Indemnitee, elect or (iv) a Proceeding in which the Company shall not in fact have employed counsel to assume the defense of such Proceeding. A Proceeding, the defense of which is properly assumed by the Company pursuant to this Section 6(b), is referred to as an “Authorized Assumed Proceeding,” and any Proceeding, the defense of which cannot be assumed or continued by the prosecution thereofCompany because it is a Proceeding described in clauses (i), including (ii), (iii), or (iv) of the employment preceding sentence, is referred to as a “Non-Authorized Proceeding.” All Expenses of counsel an Authorized Assumed Proceeding shall be borne by the Company. After notice from the Company to Indemnitee of the Company’s election to assume the defense of an Authorized Assumed Proceeding, the Company shall not be liable to Indemnitee under this Agreement or accountants, reasonably satisfactory to otherwise for any Expenses subsequently paid or incurred by Indemnitee in connection with the Indemnified Party, at its cost defense of such Authorized Assumed Proceeding other than reasonable costs of transition and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Lossinvestigation. The Indemnified Party Indemnitee shall have the right to employ legal counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinan Authorized Assumed Proceeding, but all Expenses related thereto incurred after notice from the fees and expenses Company of such counsel the Company’s assumption of the defense of an Authorized Assumed Proceeding shall be at the Indemnified Party's own Indemnitee’s expense, unless (a) the employment thereof has been specifically authorized . Indemnitee shall be entitled to receive Expense Advances and to be indemnified for all Expenses paid or incurred by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory Indemnitee related to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand Non-Authorized Proceeding as provided in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partythis Agreement.

Defense. If the facts relating any Action that might reasonably be expected to a Loss arise out a Third Party Claim, result in an Indemnifiable Claim is asserted or if there is any claim against threatened by a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the against any Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Indemnifying Party shall use its best efforts may elect to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume control the defense of such action and employ thereof with experienced counsel reasonably satisfactory to the Indemnified Party. Whether Notwithstanding the foregoing, if the Indemnifying Party, within fifteen (15) days after receipt of a notice of such Action fails to give written notice to the Indemnified Party that the Indemnifying Party shall undertake the defense thereof or thereafter fails to timely assume such defense, then the Indemnified Party shall have the right to defend, compromise or settle the Action for the account of the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. If, after the Indemnity Obligor chooses Indemnifying Party has undertaken the defense of the Action, the Indemnified Party reasonably believes (and gives notice thereof to defend the Indemnifying Party) that an Indemnifiable Claim may materially adversely affect the business or prosecute such claimoperations of the Indemnified Party, all then the parties hereto Indemnified Party shall cooperate have the right to participate in the defense or prosecution thereof of the Action at its own expense, subject to the reasonable direction of the other party. Each of the Indemnifying Party and the Indemnified Party shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested give all reasonable assistance to the other party in connection therewith. The Indemnity Obligor shall not be liable for In any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to case, the Indemnified Party in connection with any Loss arising out of a Third shall, subject to Section 10.10, make available to the Indemnifying Party Claimand its attorneys, the Indemnity Obligor shall be subrogated accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to and shall stand in the place of the Indemnified Party such Action or such other matter as to any events or circumstances in respect of which the Indemnified Party may have any right is or claim against such third party relating was required to such indemnified mattergive notice. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent party having control of the Indemnified Partydefense of an Action shall notify the other party of every proposal, oral or written, for settlement, which it receives or makes.

Defense. If the manufacture, sale or use of Licensed Products under this Agreement by THERAGENEX, its Affiliates, Sublicensees, manufacturers, distributors or customers results in any claim, suit or proceeding for patent infringement solely against THEREGENEX and/or its Affiliates, THERAGENEX shall promptly notify ADVENTRX thereof in writing, setting forth the facts relating of such claim in reasonable detail. As between the parties to a Loss arise out a Third Party Claimthis Agreement, or if there is THERAGENEX shall have the first and primary right and responsibility, at its own expense and after consultation with ADVENTRX, to defend and control the defense of any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect suit or proceeding by counsel of its own choice, which counsel shall be reasonably acceptable to assume the ADVENTRX. If ADVENTRX, and not THERAGENEX, or ADVENTRX in addition to THERAGENIX, is named as a party to such claim, suit or proceeding, ADVENTRX shall tender its defense to THERAGENEX in writing, and THERAGENEX shall defend ADVENTRX in such claim, suit or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Partyproceeding, at THERAGENEX’s own expense and through counsel of its cost and expenseown choice, which counsel shall be reasonably acceptable to ADVENTRX; provided, however, that during ADVENTRX may, at its election and expense, actively participate in the interim planning and conduct of such claim, suit or proceeding and THERAGENEX shall not, without the Indemnified express prior written consent of ADVENTRX (a) make any substantive decision regarding strategy related to such claim, suit or proceeding or (b) settle such claim, suit or proceeding. In connection with such claim, suit or proceeding, in no event shall either Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss enter into any agreement with any Third Party, with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed ADVENTRX Patent Rights, that (x) contemplates payment or other action by the Indemnity Obligor in other Party (y) has a material adverse effect on the other Party’s business or (z) makes any such action and to participate therein, but admission regarding (i) wrongdoing on the fees and expenses part of such counsel shall be at the Indemnified other Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (cii) the Indemnity Obligor has failed to assume invalidity, unenforceability or absence of infringement of ADVENTRX Patent Rights, in each case without the defense prior written consent of such action and employ counsel reasonably satisfactory to the Indemnified other Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto The Parties shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party with each other in connection with any Loss arising out of a Third Party Claimsuch claim, the Indemnity Obligor shall be subrogated to suit or proceeding and shall stand in the place keep each other reasonably informed of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action all material developments in connection with any claim such claim, suit or proceeding (including furnishing a copy of each communication relating to such claim, suit or proceeding). It is understood that would adversely affect the Indemnified terms of this Section 6.3 shall in no way limit ADVENTRX’s right to receive indemnification under Article 10 below in connection with any Third-Party without the consent of the Indemnified PartyClaims described in Section 10.1(b).

Defense. Promptly after receipt by an Indemnified Person of notice of any claim or demand or the commencement of any suit, action or proceeding by any third party with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify in writing the Indemnitor of such claim or demand or the commencement of such suit, action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnitor shall so elect, the Indemnity Obligor may, by giving written notice to Indemnitor shall assume the Indemnified Party within 15 days following its receipt of the notice defense of such claim, elect to assume the defense demand, action, suit or the prosecution thereofproceeding, including the employment of counsel or accountants, reasonably satisfactory to such Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified PartyPerson shall reasonably determine that having common counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, at its cost demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action, suit or proceeding and expensethe Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that during the interim Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action, suit or proceeding. For any claim, demand, action, suit or proceeding the defense of which the Indemnitor shall assume, the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party Person shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action participate therein and to participate therein, but the fees and expenses of retain its own counsel at such counsel shall be at the Indemnified PartyPerson's own expenseexpense (except as otherwise specifically provided in this Section 12.4), unless (a) so long as such participation does not interfere with the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment Indemnitor's control of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense demand, action, suit or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewithproceeding. The Indemnity Obligor Indemnitor shall not be liable for any settlement of any such claim effected not, without its the prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place consent of the Indemnified Party as Person, settle or compromise or consent to the entry of any events judgment in any pending or circumstances threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder unless such settlement, compromise or consent shall include an unconditional release of such Indemnified Person from all liability arising out of such claim, demand, action, suit or proceeding and would not prohibit, restrict or impair the Indemnified Party may have Person from engaging in any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partybusiness.

Defense. If In the facts relating to case of a Loss arise out Claim involving the assertion of a Third Party Claim, or if there is any claim against by a third party available by virtue of the circumstances of the Loss(whether pursuant to a lawsuit or other legal action or otherwise, a “Third-Party Claim”), the Indemnity Obligor Indemnifying Party may, by giving upon written notice to the Indemnified Party within 15 days following its receipt Party, take control of the notice defense and investigation of such claimThird-Party Claim if the Indemnifying Party acknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party to indemnify the Indemnified Party with respect to all elements of such Third-Party Claim. If the Indemnifying Party assumes the defense of any such Third-Party Claim, elect the Indemnifying Party shall select counsel reasonably acceptable to assume the Indemnified Party (and separate from counsel to the Indemnifying Party if there is any conflict or divergence of interest between the Indemnifying Party and the Indemnified Party) to conduct the defense of such claims or legal proceedings and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of or the prosecution thereof, including entry of any judgment arising from any such Third-Party Claim without the employment prior written consent of counsel or accountants, reasonably satisfactory to the Indemnified PartyParty (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such Third-Party Claim, with its own counsel and at its cost and own expense; provided, however, that during the interim the Indemnified Party shall use its best efforts be entitled to take all action (not including settlement) reasonably necessary to protect against further damage settle any Third-Party Claim involving criminal penalties, civil fines or loss with respect to harm without the Loss. The Indemnified consent, but at the expense, of the Indemnifying Party if the Indemnifying Party shall have the right unreasonably fail to employ counsel separate from counsel employed do so after being requested to do so by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) . If the employment thereof has been specifically authorized by Indemnifying Party does not notify the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to will assume the defense of such action and employ counsel reasonably satisfactory to Third-Party Claim within thirty (30) days after the Indemnifying Party receives notice of such claim from the Indemnified Party. Whether : (a) the Indemnified Party may defend against such Third-Party Claim in such manner as it may deem reasonably appropriate, provided that the Indemnified Party shall not consent to a settlement of or the entry of any judgment arising from such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed); and (b) the Indemnity Obligor chooses Indemnifying Party shall be entitled to defend or prosecute such claim, all the parties hereto shall cooperate participate in (but not control) the defense or prosecution thereof of such action, with its counsel and at its own expense. Regardless of which Party shall furnish such recordsassume the defense of the Third-Party Claim, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested the Parties agree to cooperate fully with one another in connection therewith. The Indemnity Obligor Such cooperation shall not be liable for any settlement include the providing of records and information which are relevant to such Third-Party Claim and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor material provided hereunder and to act as a witness or respond to legal process, in each case to the Indemnified extent that the Party in connection with being requested to provide records and information or to make employees and officers available can do so without waiving any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated evidentiary privileges to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyit is entitled.

Defense. If the facts relating to a Loss arise out any action discussed in Section 10.5 is brought against an indemnified party by a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossParty, the Indemnity Obligor may, by giving written notice indemnifying Party will be entitled to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect participate in and to assume the defense or the prosecution thereof, including the employment of with counsel or accountants, reasonably satisfactory acceptable to the Indemnified Partyindemnified party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified extent that it may wish, and after notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnified party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate thereinparticipate, but the fees and expenses of such counsel shall be at the Indemnified Party's its own expense, unless (a) in the employment thereof has been specifically authorized defense of such claim; provided that the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the Indemnity Obligor, (b) such Indemnified latter in connection with the defense thereof unless the indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume and diligently prosecute the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement indemnifying Party will keep the indemnified party reasonably informed of the status of any such claim effected without Third Party action. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its prior written consent. In own counsel and assume the event defense of payment any action brought against it if the indemnifying Party fails to assume and diligently prosecute such defense, the expenses of such defense to be paid by the Indemnity Obligor indemnifying Party. As a condition to the Indemnified indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in connection with any Loss arising out the prosecution or defense of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matterclaim at no unreasonable expense to the indemnified party. The Indemnified No indemnifying Party shall cooperate consent to entry of any judgment or enter into any settlement or compromise with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any respect to a claim that would adversely affect the Indemnified Party either (a) without the consent of the Indemnified indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment, settlement or compromise involves only the payment of monetary damages by the indemnifying Party (which monetary damages are less than or equal to any cap applicable thereto), does not require any payment by or impose an injunction or other equitable relief or any other obligation upon the indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement or compromise of any such action, the defense of which has been assumed and diligently pursued by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. If any of the facts relating indemnified parties is made or threatened to be ------- made a Loss arise out a Third Party Claimdefendant in or party to any action or proceeding, judicial or if there is administrative, instituted by any claim against a third party available by virtue for the liability under which or the costs or expenses of which any of the circumstances of the Lossindemnified parties is entitled to be indemnified pursuant to this Paragraph I (any such third party action or proceeding being referred to as an "Indemnification Claim"), the Indemnity Obligor may, by giving written indemnified party or parties shall give prompt notice thereof to the Indemnified Party within 15 days following indemnifying party; provided that the failure to give such notice shall not affect the indemnified -------- party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, at its receipt of the notice of such claimown expense, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and claim or any litigation to participate thereinwhich this Paragraph 1 may be applicable, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor indemnified party or parties; provided, that there the indemnified party or parties shall be entitled at any time, -------- at its or their own cost and expense (which expense shall not be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of a conflict of interest, may be one not adequately represent, the indemnified party or more legal defenses available parties' interests), to it which are different from or additional to those available to the Indemnity Obligor and participate in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all action or proceeding and to be represented by attorneys of its or their own choosing. If the indemnified party or parties hereto shall cooperate elects to participate in the defense such defense, such party or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall parties will cooperate with the Indemnity Obligor indemnifying party in prosecuting any subrogated claimthe conduct of such defense. The Indemnity Obligor will take no action in connection with indemnified party or parties may not concede, settle or compromise any claim that would adversely affect the Indemnified Party Indemnification Claim without the consent of the Indemnified Partyindemnifying party. The indemnifying party, in the defense of any such claim or litigation, shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of a full and complete release from all liability in respect to such claim or litigation.

Defense. Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satis- factory to the Indemnified Party), any Third Party Claim. If the facts relating Indemnifying Party elects to a Loss arise out a compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indem- nifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or if fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice to any of its rights as against the Indemnifying Party), compro- mise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and ex- penses of the Indemnified Party incurred in connection there- with shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) there is any claim against a third party available by virtue conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the circumstances defense of the Loss, the Indemnity Obligor may, by giving written notice such Third Party Claim or (y) there are specific defenses available to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment of such counsel it is advisable for such Indemnifying Party, then the Indemnified Party shall have the right to employ separate counsel, or (c) the Indemnity Obligor has failed to assume direct the defense of such action Third Party Claim with the participation of the Indemnifying Party. In such an event, the Indemnifying Party shall pay the reasonable fees and employ disbursements of counsel reasonably satisfactory of the Indemnifying Party and one counsel to all the Indemnified PartyParties. Whether or not Notwithstanding the Indemnity Obligor chooses to defend or prosecute such claimforegoing, all neither the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Indemnify- ing Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which nor the Indemnified Party may have settle or compromise any right or claim against such (however, if the sole settlement relief payable to a third party relating to in respect of such indemnified matter. The Indemnified Third Party shall cooperate with Claim is monetary damages that are paid in full by the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any Indemnifying Party, the Indemnifying Party may settle such claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party) over the objection of the other; pro- vided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any per- sonnel or any books, records or other documents within its con- trol that are reasonably necessary or appropriate for such de- fense, subject to the receipt of appropriate confidentiality agreements.

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there Claim is any claim made against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party, then the Indemnifying Party within 15 days following its receipt of shall be entitled to participate in the notice of such claimdefense thereof and, elect if the Indemnifying Party so chooses, to assume the defense or thereof with counsel selected by the prosecution thereof, including the employment of counsel or accountants, Indemnifying Party and reasonably satisfactory to the Indemnified Party, at its cost provided that the Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a customer or supplier of the Business, or (y) seeks an injunction or other equitable relief against the Indemnified Party. The Indemnifying Party shall be liable for the reasonable fees and expenseexpenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that during (i) prior to assuming the interim defense of such Third Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third Party Claim shall use its best efforts not signify any agreement, obligation or commitment on the part of the Indemnifying Party to take all action (not including settlement) reasonably necessary assume or pay any amount awarded to protect against further damage or loss with a claimant in respect to of such Third Party Claim. If the Loss. The Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel separate from the counsel employed by the Indemnity Obligor in any Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such action and to participate therein, but the defense. The fees and expenses disbursements of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party's own expense, unless (a) provided, that if in the employment thereof has been specifically authorized by reasonable opinion of counsel to the Indemnity ObligorIndemnified Party, (bA) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more are legal defenses available to it which an Indemnified Party that are different from or additional to those available to the Indemnity Obligor Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and in the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable judgment fees and expenses of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified PartyParty in each jurisdiction for which the Indemnified Party determines counsel is required. Whether or not If the Indemnity Obligor Indemnifying Party chooses to defend or prosecute such claimany Third Party Claim, all then the parties hereto Parties shall cooperate in the defense or prosecution thereof of such Third Party Claim. Such cooperation shall include the retention and shall furnish (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such recordsThird Party Claim, and making employees available on a mutually convenient basis to provide additional information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement explanation of any such claim effected without its prior written consentmaterial provided hereunder. In If the event Indemnifying Party has not within ten (10) Business Days after receipt of payment by the Indemnity Obligor an Indemnification Notice relating to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated chosen to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and shall stand in the place of good faith, then the Indemnified Party as shall (upon further written notice) have the right to any events defend and, subject to Section 7.4(c), compromise or circumstances in settle of such Third Party Claim or {W5975088.1} 33 consent to the entry of judgment with respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Third Party shall cooperate with Claim, in each case at the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent cost and expense of the Indemnified Indemnifying Party.

Defense. If (a) Promptly after the facts relating receipt by any person entitled to a Loss arise out a Third Party Claim, or if there is indemnification under Section 7.2 and 7.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against a third any party available by virtue of obligated to provide indemnification pursuant to Section 7.2 and 7.3 herein (the circumstances of the Loss"Indemnifying Party"), the Indemnity Obligor may, by giving give such Indemnifying Party written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense claim or the prosecution thereof, including the employment commencement of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action or proceeding and to participate therein, but shall permit the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and employ the Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action. (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Indemnified Aggrieved Party. Whether The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or not the Indemnity Obligor chooses to defend or prosecute such claimotherwise, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment incurred by the Indemnity Obligor to the Indemnified Aggrieved Party in connection with any Loss arising out the defense against or settlement of a Third Party Claim, the Indemnity Obligor such claim or litigation. No settlement of claim or litigation shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party made without the consent of the Indemnified Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all (d) Subject to Section 7.5 hereof, the rights to indemnification hereunder (i) shall apply only to claims of any amount made by the Aggrieved Party from and after the point at which a single claim or an aggregate of several claims equals $5,000.00; and (ii) apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.

Defense. If any Action is brought against an Indemnified Party, the facts relating Indemnifying Party will be entitled to a Loss arise out a Third participate in and to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the Indemnifying Party Claim, or if there is any claim against a third party available by virtue to such Indemnified Party of the circumstances of Indemnifying Party’s election to assume the Lossdefense thereof, the Indemnity Obligor may, by giving written notice Indemnifying Party will not be liable to the Indemnified Party within 15 days following its receipt of for any legal or other expenses subsequently incurred by the notice of such claim, elect to assume latter in connection with the defense or thereof unless the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Indemnifying Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed fails to assume the defense of such action and employ counsel reasonably satisfactory Action to protect the Indemnified Party. Whether or not Notwithstanding anything to the Indemnity Obligor chooses to defend or prosecute such claimcontrary in this Subsection 10.4(b), all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party will be entitled to select its own counsel and assume the defense of any Action brought against it, at the Indemnifying Party’s expense if (i) the court in connection with any Loss arising out which such Action is pending determines that a conflict of a Third Party Claim, interest exists such that the Indemnity Obligor shall be subrogated Indemnifying Party’s counsel is prohibited by such court or otherwise unable to and shall stand in the place of represent the Indemnified Party as with respect to any events such Action or circumstances in respect of which (ii) if there is one or more defenses that could be asserted by the Indemnified Party may have any right that could not be asserted by the Indemnifying Party or claim against such third party relating to such indemnified matterthe Indemnifying Party’s counsel (on the Indemnified Party’s behalf). The Indemnified expenses of such defense to be paid by the Indemnifying Party shall cooperate with be limited to the Indemnity Obligor expenses of one law firm in prosecuting any subrogated claimeach state in which an action has been filed. The Indemnity Obligor will take no action in connection with any claim that would adversely affect As a condition to the Indemnifying Party’s obligations hereunder, the Indemnified Party will in good faith cooperate with and assist the Indemnifying Party in the prosecution or defense of such indemnified Action at the expense of the Indemnifying Party. No Indemnifying Party will consent to entry of any judgment or enter into any settlement with respect to an indemnified Action either: (i) without the consent of the Indemnified Party, which consent will not be unreasonably delayed, conditioned or withheld; or (ii) unless such judgment or settlement includes the claimant or plaintiff giving the Indemnified Party an unconditional release from all liability with respect to such Action. No Indemnified Party will consent to entry of any judgment or enter into any settlement of any indemnified Action, the defense of which has been assumed by an Indemnifying Party, without the consent of such Indemnifying Party, which consent will not be unreasonably delayed, conditioned or withheld.

Defense. If (a) Promptly after the facts relating receipt by any person entitled to a Loss arise out a Third Party Claim, or if there is indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against a third any party available by virtue of obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the circumstances of the Loss"Indemnifying Party"), the Indemnity Obligor may, by giving give such Indemnifying Party written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense claim or the prosecution thereof, including the employment commencement of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action or proceeding and to participate therein, but shall permit the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and employ the (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Indemnified Aggrieved Party. Whether The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or not the Indemnity Obligor chooses to defend or prosecute such claimotherwise, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment incurred by the Indemnity Obligor to the Indemnified Aggrieved Party in connection with any Loss arising out the defense against or settlement of a Third Party Claim, the Indemnity Obligor such claim or litigation. No settlement of claim or litigation shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party made without the consent of the Indemnified Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation. (d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the period of the applicable statute of limitations.

Defense. (i) If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense of the Third Party Claim (with counsel of its own choosing) and, if both the amount that the plaintiff or claimant is seeking under such Third Party Claim is less than the then outstanding indemnification obligation of the Indemnifying Party pursuant to the terms of this Agreement (without taking into account court costs and reasonable fees and expenses of attorneys and expert witnesses) and the Indemnifying Party so chooses within 30 days of delivery of notice thereof, to assume the defense of such Third Party Claim. (ii) If the facts relating Indemnifying Party elects to assume the defense of a Loss arise out a Third Party Claim as set forth in Section 8.4(b)(i), then (A) the Indemnifying Party shall defend such Third Party Claim actively and in good faith, (B) the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, or if there is any claim against a third party available by virtue of (C) the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to participate in the defense of such Third Party Claim and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnity Obligor Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, and (D) the Parties shall cooperate in the defense of such Third Party Claim, with such cooperation including the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material, provided; however, that neither the Indemnified Party nor the Indemnifying Party shall be required to disclose any privileged information or any attorney work-product in connection with the defense of any such action and asserted Third Party Claim unless such disclosure is made pursuant to participate therein, but a joint defense agreement reasonably acceptable to both parties. (iii) If the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed right to assume the defense of a Third Party Claim under Section 8.4(b)(i) and, within the time period set forth in Section 8.4(b)(i), does not assume defense of such action Third Party Claim or if the Indemnifying Party does not have the right to assume the defense of a Third Party Claim under Section 8.4(b)(i), then (A) the Indemnified Party shall defend such Third Party Claim actively and in good faith, (B) the Indemnifying Party shall have the right to participate in the defense of such Third Party Claim and to employ counsel, at its own expense, separate from the counsel reasonably satisfactory to employed by the Indemnified Party. Whether or not , it being understood, however, that the Indemnity Obligor chooses to defend or prosecute Indemnified Party shall control such claim, all defense and (C) the parties hereto Parties shall cooperate in the defense or prosecution thereof of such Third Party Claim, with such cooperation including the retention and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In (upon the event of payment by Indemnified Party’s request) the Indemnity Obligor provision to the Indemnified Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material, provided, however, that neither the Indemnified Party nor the Indemnifying Party shall be required to disclose any privileged information or any attorney work-product in connection with the defense of any Loss arising out of a such asserted Third Party ClaimClaim unless such disclosure is made pursuant to a joint defense agreement reasonably acceptable to both parties. (iv) Notwithstanding anything to the contrary in this Section 8.4(b), neither the Indemnity Obligor shall be subrogated to and shall stand in the place of Indemnifying Party nor the Indemnified Party as shall settle, or consent to the entry of judgment with respect to, any events or circumstances in respect of which the Indemnified Third Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party Claim without the prior written consent of the Indemnified Partyother (which consent shall not be unreasonably withheld, conditioned or delayed).

Defense. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossExcept as otherwise provided herein, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of such claim, may elect to assume the defense compromise or the prosecution thereofdefend, including the employment of at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel or accountants, (which counsel shall be reasonably satisfactory to the Indemnified Party), at any Third Party Claim. If the Indemnifying Party elects to compromise or #297907 -35- defend such Third Party Claim, it shall, within thirty (30) days after receiving notice of the Third Party Claim (ten (10) days if the Indemnified Party states in such notice that prompt action is required), notify the Indemnified Party of its cost intent to do so, and expense; provided, however, that during the interim the Indemnified Party shall use cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its best efforts election to take all action do so as herein provided, or otherwise fails to pursue the defense of such Third Party Claim with reasonable diligence, (not including settlementi) reasonably necessary to protect the Indemnified Party may pay (without prejudice of any of its rights as against further damage the Indemnifying Party), compromise or loss with respect defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be paid by the Indemnifying Party pursuant to the Lossterms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the right to employ counsel separate from counsel employed by Indemnifying Party and the Indemnity Obligor Indemnified Party in any such action and to participate therein, but the fees and expenses conduct of the defense of such counsel shall be at the Indemnified Party's own expense, unless Third Party Claim or (ay) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal are specific defenses available to it the Indemnified Party which are different from or additional to those available to the Indemnity Obligor Indemnifying Party and in which could be materially adverse to the reasonable judgment of such counsel it is advisable for such Indemnifying Party, then the Indemnified Party to employ separate counsel, or (c) shall have the Indemnity Obligor has failed right to assume and direct the defense of such action Third Party Claim. In such an event, the Indemnifying Party shall pay the reasonable fees and employ disbursements of counsel reasonably satisfactory of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any Third Party Claim (unless the sole relief payable in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. Whether or not In any event, except as otherwise provided herein, the Indemnity Obligor Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend or prosecute such any claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with shall make available to the Indemnifying Party any Loss arising out personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyappropriate confidentiality agreements.

Defense. If (a) Promptly after the facts relating receipt by any person entitled to a Loss arise out a Third Party Claim, or if there is indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the “Aggrieved Party”) will, if claim with respect thereto is made against a third any party available by virtue obligated to provide indemnification pursuant to Section 5.1 and 5.2 of this Agreement (the circumstances of the Loss“Indemnifying Party”), the Indemnity Obligor may, by giving give such Indemnifying Party written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense claim or the prosecution thereof, including the employment commencement of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action or proceeding and to participate therein, but shall permit the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and employ the Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action. (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Indemnified Aggrieved Party. Whether The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or not the Indemnity Obligor chooses to defend or prosecute such claimotherwise, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment incurred by the Indemnity Obligor to the Indemnified Aggrieved Party in connection with any Loss arising out the defense against or settlement of a Third Party Claim, the Indemnity Obligor such claim or litigation. No settlement of claim or litigation shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party made without the consent of the Indemnified Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation. (d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the one-year period following the Closing Date unless otherwise provided herein.

Defense. If the facts relating to any claim, demand or liability is asserted by any third Person against any Indemnified Party (a Loss arise out a "Third Party Claim"), or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt will, upon notice of the notice of such claimclaim or demand, elect to assume promptly notify the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Indemnifying Party, at its cost and expense; provided, however, that during the interim Indemnifying Party will defend and/or settle any actions or proceedings brought against the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with in respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed of matters embraced by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ indemnity with counsel reasonably satisfactory to the Indemnified Party. Whether or If the Indemnifying Party does not the Indemnity Obligor chooses to promptly defend or prosecute settle any such claimclaims, the Indemnified Party will have the right to control any defense or settlement, at the expense of the Indemnifying Party. No claim will be settled or compromised without the prior written consent of each party to be affected, with such consent not being unreasonably withheld. The Indemnified Party will at all times also have the right to participate fully in the defense at its own expense unless: (a) under applicable standards of conduct, a conflict on any significant issue exists between any two or more Indemnified Parties; or (b) the Third Party Claim is made both against an Indemnifying Party and an Indemnified Party and the Indemnified Party has been advised by counsel that there are legal defenses available to such Indemnified Party that are materially different from those available to the Indemnifying Party, in which case the fees and expenses of one counsel in respect of such claim incurred by the Indemnified Party will be paid by Indemnifying Party. The parties hereto shall will cooperate in the defense of all Third Party Claims that may give rise to Indemnifiable Claims hereunder. In connection with the defense of any claim, each party will make available to the party controlling such defense, any books, records or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be other documents within its control that are reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement the course of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partydefense.

Defense. For purposes of this Section 9.5, a "Protected Party" shall refer to a Buyer Protected Party or a Seller Protected Party, as appropriate. If the facts relating pertaining to a Loss arise out a Third Party Claimof the claim of any third party, or if there is any claim against a third party (other than an Indemnified Party or a Protected Party) available by virtue of the circumstances of the Loss, the Indemnity Obligor may, Indemnifying Party may assume the defense or the prosecution thereof by giving prompt written notice to the Indemnified Party within 15 days following its receipt of and the notice of such claim, elect to assume the defense or the prosecution thereofaffected Protected Party, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party and the affected Protected Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor Indemnifying Party in any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party and the affected Protected Party shall be at their expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if the Indemnifying Party does not 37 38 assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof from any Protected Party, the Indemnified Party and the affected Protected Party may settle such claim without the Indemnifying Party's consent. The Indemnifying Party shall not agree to a settlement of any claim which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of any Protected Party without the Indemnified Party's own expense, unless (a) and the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified affected Protected Party's prior written consent. Whether or not the Indemnity Obligor Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony testimony, and shall attend such conferences, discovery proceedings proceedings, hearings, trials and trial appeals, as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Indemnifying Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to all rights and shall stand in the place remedies of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Protected Party.

Defense. Promptly after receipt by an Indemnified Person of notice of the commencement of any action or proceeding with respect to which indemnification may be sought hereunder, such person shall notify the Indemnitor of the commencement of such action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be materially prejudiced by such failure. If the facts relating to a Loss arise out a Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of the LossIndemnitor shall so elect, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to Indemnitor shall assume the defense of such action or the prosecution thereofproceeding, including the employment of counsel or accountants, reasonably satisfactory to such Indemnified Person and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified PartyPerson reasonably shall determine in its judgment that having com- mon counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the action or proceeding in a timely manner, at its cost then such Indemnified Person may employ separate counsel to represent or defend it in any such action or proceeding, and expensethe Indemnitor shall pay the reasonable fees and dis- bursements of such counsel; provided, however, that during the interim Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action or proceeding. In any action or proceeding the defense of which the Indemnitor shall assume, the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party Person shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor participate in any such action litigation and to participate therein, but the fees and expenses of retain its own counsel at such counsel shall be at the Indemnified PartyPerson's own expense, unless (a) so long as such participation shall not interfere with the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment Indemnitor's control of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partylitigation.

Defense. (a) If the facts relating pertaining to a Loss arise out of the claim of any third party or a Third Party Claimgovernmental authority, or if there is any claim against a third party or a governmental authority available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 15 twenty (20) business days following its receipt of the notice of such claim, elect to assume and control the defense or the prosecution thereof, including through the employment of counsel or accountantscounsel, reasonably satisfactory to the Indemnified Party, accountants and environmental and other consultants and contractors at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's ’s own expense. In such event, unless (a) the employment thereof has been specifically authorized by the Indemnity ObligorObligor shall have the right to settle or resolve any such claim by a third party or governmental authority; providedhowever, (b) that any such Indemnified Party has been advised settlement or resolution contemplated by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to involves any action by the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) shall not be concluded without the Indemnity Obligor has failed to assume the defense prior written approval of such action and employ counsel reasonably satisfactory to the Indemnified Party. , which approval shall not be unreasonably withheld. (b) Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information information, and testimony and shall attend such conferences, discovery proceedings and trial trials as may be reasonably requested in connection therewith. Where the Indemnified Party or the Indemnity Obligor is defending and controlling any claim, they shall select counsel, contractors, experts and consultants of recognized standing and competence to take all steps necessary in the investigation, defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. The party conducting the defense thereof shall at all times act as if all Losses relating to any such claim are for its own account and shall act in good faith and with reasonable prudence to minimize Losses therefrom. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor which shall not be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyunreasonably withheld.

Defense. If within 10 calendar days after an Indemnitee provides ------- Notice to the facts relating to a Loss arise out a Indemnifying Party of any Third Party Claim, or if there is any claim against a third party available by virtue of the circumstances of Indemnitee receives Notice from the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Indemnifying Party within 15 days following its receipt of the notice of that such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed elected to assume the defense of such action and employ counsel reasonably satisfactory to Third Party Claim, the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof. The Indemnitee shall be entitled to participate in the defense of such Third Party Claim and to employ counsel for such purpose at the sole cost and expense of Indemnitee. Without the prior written consent of the Indemnitee, the Indemnifying Party will not enter into any settlement of any such claim effected without its prior written consentThird Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder, or which would impose any injunctive or other equitable remedy on the Indemnitee. In the event of payment by the Indemnity Obligor If a firm offer is made to the Indemnified Party in connection with any Loss arising out of settle a Third Party ClaimClaim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnitee) and the Indemnifying Party desires to accept and agree to such offer, the Indemnity Obligor shall be subrogated Indemnifying Party will give Notice to and shall stand the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 10 calendar days after its receipt of such Notice, the Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the place maximum liability of the Indemnified Indemnifying Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Third Party shall cooperate with Claim will be the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnified Party without Indemnitee up to the consent date of the Indemnified Partysuch notice.

Defense. If The procedures to be followed by any party with respect to indemnification hereunder regarding claims by third persons shall be as follows: 49 (a) Promptly after receipt by any party of notice of the facts relating to a Loss arise out a Third Party Claim, commencement of any action or if there is the assertion of any claim against by a third person which the party available receiving such notice has reason to believe may result in a claim by virtue it for indemnity pursuant to this Agreement, such party (each, an "Indemnified Party") shall give a notice of such action or claim to the circumstances other party against whom indemnification pursuant hereto is sought (each, an "Indemnifying Party"), setting forth in reasonable detail the nature of such action or claim, including copies of any written correspondence from such third party to such Indemnified Party. The failure to give notice as required by the Loss, immediately preceding sentence shall not result in a waiver of any right to indemnification hereunder except to the Indemnity Obligor extent the Indemnifying Party is actually and materially prejudiced by reason of such failure or delay. The indemnifying Party may, by giving written at its own expense, assume and control the defense of any claim for which it has received notice to in accordance with this Section 13.5 and notify the Indemnified Party within 15 days of such assumption. The Indemnified Party shall be entitled to participate therein after such assumption, the costs of such participation following such assumption to be at its receipt own expense. Upon assuming such defense, the Indemnifying Party shall have full rights to enter into any monetary compromise or settlement which is dispositive of the notice of such claim, elect to assume the defense or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expensematters involved; provided, however, that during no such settlement shall be made without the interim prior written consent of the Indemnified Party, which shall not be unreasonably withheld; (b) If the Indemnifying Party does not assume the defense of any claim promptly after receiving notice thereof by the Indemnified Party, the Indemnified Party may assume and control the defense of and contest such action with counsel chosen by it and approved by the Indemnifying Party, which approval shall use not be unreasonably withheld. The Indemnifying Party shall be entitled to participate in the defense of such action, the cost of such participation to be at its best efforts own expense. The Indemnifying Party shall be obligated to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect pay the reasonable attorneys' fees and expenses of the Indemnified Party to the Lossextent that such fees and expenses relate to claims as to which indemnification is due under this Section 13.5(b). The Indemnified Party shall have the right full rights to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense dispose of such action and employ counsel reasonably satisfactory to enter into any monetary compromise or settlement; provided, however, that no such settlement shall be made without the Indemnified prior written consent of the Indemnifying Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor which shall not be liable for unreasonably withheld; and (c) Both the Indemnifying Party and the Indemnified Party shall reasonably cooperate fully (but not including the waiver of any privileged communication) with one another in connection with the defense, compromise or settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Partyaction.

Defense. If (a) Promptly after the facts relating receipt by any person entitled to a Loss arise out a Third Party Claim, or if there is indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against a third any party available by virtue obligated to provide indemnification pursuant to Stock Purchase Agreement - Page 10 ------------------------ Section 5.1 and 5.2 of this Agreement (the circumstances of the Loss"Indemnifying Party"), the Indemnity Obligor may, by giving give such Indemnifying Party written notice to the Indemnified Party within 15 days following its receipt of the notice of such claim, elect to assume the defense claim or the prosecution thereof, including the employment commencement of counsel or accountants, reasonably satisfactory to the Indemnified Party, at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action or proceeding and to participate therein, but shall permit the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Indemnifying Party has been advised by counsel reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and employ the Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action. (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Indemnified Aggrieved Party. Whether The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or not the Indemnity Obligor chooses to defend or prosecute such claimotherwise, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment incurred by the Indemnity Obligor to the Indemnified Aggrieved Party in connection with any Loss arising out the defense against or settlement of a Third Party Claim, the Indemnity Obligor such claim or litigation. No settlement of claim or litigation shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party made without the consent of the Indemnified Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense against such claim or litigation. (d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the claim has been made and delivered within the one-year period following the Closing Date unless otherwise provided herein. Stock Purchase Agreement - Page 11 ------------------------