Common use of Defense Clause in Contracts

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise The Indemnifying Party shall have the right to indemnity hereunder resulting from or arising out assume and control the defense of any claim or legal proceeding the Third Party Claim at the Indemnifying Party’s expense and by a person who is not a party to the AgreementIndemnifying Party’s own counsel; provided that, if the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory (a) fails to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from the Indemnified Party, (b) declines the right to assume the defense by providing written notice of thereof to the claim is received subject Indemnified Party, (c) disputes its responsibility to a reservation of rights to contest its indemnity obligation and obtain reimbursement from indemnify the Indemnified Party for its costs and expenses in defending and settling same. The Indemnified such Third Party shall be entitled to participate in Claim, and/or (but not controld) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume prosecute the defense of such claim; providedThird Party Claim, further, that then the Indemnified Party may not settle such claim without shall have the prior written consent right to assume the control of the defense and, to the extent that the Indemnifying PartyParty is found to be responsible for such Third Party Claim under this Section 13, which consent may not be unreasonably withheld. If the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending such Third Party Claim. In the event that the Indemnifying Party assumes the defense of the claim, the Indemnifying a Third Party shall reimburse the Indemnified Party for the reasonable fees Claim and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled continues to participate in (but not control) diligently prosecute the defense of such claim, with its counsel and at its own expense. If Third Party Claim pursuant to the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementforegoing sentence, the Indemnifying Party shall have the burden right to prove by a preponderance control the defense of the evidence Third Party Claim, provided that the Indemnified Party did not defend or settle such third-party claim shall have the right to participate 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim with counsel selected by it at the Indemnified Party’s expense.

Defense. In connection with If any claim giving rise to indemnity hereunder resulting from claim, demand or arising out of liability is asserted by any claim or legal proceeding by a person who is not a third party to the Agreementagainst any Indemnified Party, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party mayshall, upon the written notice to request of the Indemnified Party, assume defend any actions or proceedings brought against the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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 respect of matters embraced by the indemnity, but the Indemnified Party shall be entitled have the right to participate in (but not control) conduct and control the defense defense, compromise or settlement of any such actionIndemnifiable Claim if the Indemnified Party chooses to do so, with its counsel on behalf of and at its own expensefor the account and risk of the Indemnifying Party who shall be bound by the result so obtained to the extent provided herein; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may shall not settle such claim or compromise any Indemnifiable Claim without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimIf, after a request to defend any action or proceeding, the Indemnifying Party shall reimburse neglects to defend the Indemnified Party, a recovery against the latter suffered by it in good faith, is conclusive in its favor against the Indemnifying Party; provided, however, that, if the Indemnifying Party has not received reasonable notice of the action or proceeding against the Indemnified Party, or is not allowed to control its defense, judgment against the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party and is only presumptive evidence against the Indemnifying Party Party. The parties shall be entitled to participate cooperate in (but not control) the defense of such claim, all third party claims which may give rise to Indemnifiable Claims hereunder. In connection with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any actionclaim, suit each party shall make available to the party controlling such defense, any books, records or proceeding, whether or not subject to indemnification hereunderother documents within its control that are reasonably requested in the course of such defense.

Defense. In connection with If any claim giving rise to indemnity hereunder resulting from claim, demand or arising out of liability is asserted by any claim or legal proceeding by a person who is not a third party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the against any Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel therein and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which defend any action or proceeding brought against the Indemnified Party defended such third-party claim or in respect of matters embraced by the amount or nature of any such settlementindemnity, and the Indemnifying Party shall have the burden right to prove conduct and control the defense subject to the Indemnified Party’s approval in writing of outside counsel selected by a preponderance of the evidence that Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree of its election 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 assume the proper and adequate defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party under this Section 11.3 for any reasonable legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. In any action defended by the Indemnifying Party the Indemnified Party shall have the right to be represented by its own counsel at its own expense unless (1) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; or (2) the Indemnifying Party shall not have properly employed counsel reasonably satisfactory to such Indemnified Party 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 proceedingproceeding (including any impleaded parties) shall include both such Indemnified Party and Indemnifying Party, whether and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from, or additional to, those available to the Indemnifying Party, and if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not subject have the right to indemnification 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 expenses of more than one separate firm of attorneys (in addition to any local counsel 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 Party from all liability in respect of such indemnifiable claim. The parties shall cooperate in the defense of all third party claims which may give rise to indemnifiable claims hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, 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 thirty (30) fifteen days after written receipt of notice from the Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is received subject not, in the good faith judgment of the Indemnified Party, likely to establish a reservation pattern or practice adverse to the continuing business interests of rights to contest its indemnity obligation and obtain reimbursement from the Indemnified Party for its costs and expenses in defending and settling sameParty. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 costscompensation, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementlimitations set forth in this Section 10.5(b), in the Indemnifying event of a Third Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden right (exercisable by written notice to prove by the Indemnified Party within ten (10) days after the Indemnified Party has given a preponderance Claim Notice of the evidence Third Party Claim) to elect to conduct and control, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party did 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 defend 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 of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or settle potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then in each such third-case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the 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 controlling the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the made against an Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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 Indemnifying Party shall be entitled to participate in (but not control) the defense of any the Third Party Claim and, if the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, then, for so long as the Indemnifying Party defends the Third Party Claim, the Indemnifying Party shall be deemed to have acknowledged its indemnification obligations under this Article 1 with respect to such actionThird Party Claim, and the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with its counsel the defense of the Third Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in the defense of the Third Party Claim and to employ counsel, at its own expense, 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 that Parent shall not settle or compromise any Third Party Claim arising solely as a result of a breach of any representation or warranty for an amount in excess of Parent’s aggregate indemnification obligations under this Article 1, as set forth in Section 8.1(b)(iii), without Buyer’s written consent, which consent may not be unreasonably withheld, delayed or conditioned. 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) the provision to the Indemnifying Party of records that are reasonably relevant to the Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided. If the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of the Third Party Claim or at any time fails to defend the Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further notice to the Indemnifying Party) have the right to undertake the defense of the Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to defend or settle a Third Party Claim, and the Indemnifying Party will pay the reasonable attorneys’ fees and related out-of-pocket expenses of the Indemnified Party in defending or settling a Third Party Claim with respect to which the Indemnifying Party is obligated to provide indemnification hereunder, where the remedy sought is reasonably expected to have a Material Adverse Effect; provided, however, that if there are one or more legal defenses available to in any such event the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may will not settle such claim the Third Party Claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim delayed or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderconditioned.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementlimitations set forth in this Section 10.6(b), the Indemnifying Party shall have the right to elect to conduct and control the defense, compromise or settlement of any Third Party Claim with counsel of its choice reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s sole cost and expense; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense and with counsel reasonably satisfactory to expense. Notwithstanding the Indemnified foregoing, if (i) the Indemnifying Party may, upon shall not have given written notice (A) of its election to the Indemnified Party, assume conduct and control the defense of any such claim or legal proceeding 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 written notice of the claim 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 has given notice thereof, (ii) the Indemnified Party shall be entitled to participate reasonably determine in (but not control) the defense of any such actiongood faith, after consultation with its counsel and at its own expense; provided, howeveroutside counsel, that if there are one or more legal defenses available use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest or that conflict with those the Indemnified Party has material defenses or counterclaims available to it that are not available to the Indemnifying Party, or if Party (and that cannot be utilized by the Indemnifying Party fails to take reasonable steps necessary to diligently defend on behalf of the claim after receiving notice from Indemnified Party), (iii) the Indemnified Party is not reasonably 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 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 it believes the Indemnifying Party has failed is potentially liable for with respect to do so, 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 may assume the defense of Party, then in each such claim; provided, further, that case the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden right to prove by a preponderance control the defense, compromise or settlement of the evidence that Third Party Claim at the Indemnified Party did Indemnifying Party’s sole cost and expense, not defend or settle such third-party claim to exceed one law firm in a reasonably prudent manner. The parties agree to renderthe United States and one firm in any foreign jurisdiction, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderif applicable.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party at may elect to pay, compromise or defend (with the expenses incurred by the Indemnifying Party in connection therewith for its sole cost and expense and with own account) by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, with the expense of the Indemnified Party being part of the Loss for which the Indemnified Party is entitled to indemnification pursuant to the terms of this Agreement, 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 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 of any of its rights as against the Indemnifying Party), compromise or 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 terms of this Agreement. However, if within 30 days of receiving a notification from the Indemnifying Party that the Indemnifying Party does not elect to defend a Third Party Claim, the Indemnified Party fails to notify the Indemnifying Party that the Indemnified Party is electing to pay, compromise or defend the claim or notifies the Indemnifying Party that it does not elect to pay, compromise or defend the claim, then the Indemnifying Party may elect to pay, compromise or defend the claim by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), assume with the defense of any such claim or legal proceeding within thirty (30) days after written notice expenses incurred by the Indemnifying Party for the account of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party but part of the Loss for its costs and expenses in defending and settling same. The which the Indemnified Party shall be is entitled to participate in (but not control) indemnification pursuant to the defense term by this Agreement. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of any such action, with its counsel and at its own expensethe other; provided, however, that if there are one (i) consent to settlement or more legal defenses available to compromise shall not be unreasonably withheld by the Indemnified Party and (ii) if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that conflict with those available to are paid in full by the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Indemnified Party. In any event, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimexcept as otherwise provided herein, 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 may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to 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 Indemnifying Party, assume 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 election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or 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 defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such action, with its counsel and at its own expense; provided, however, that if Third Party Claim or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party fails to take shall pay the reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes fees and disbursements of counsel of the Indemnifying Party has failed and one counsel to do soall the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any claim over the defense objection of such claim; the other, provided, however, that -------- ------- 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 and such settlement includes an unconditional term releasing the Indemnified Party from all liability in respect of such Third Party Claim, the Indemnifying Party may not settle such claim without the prior written consent of the Indemnifying Indemnified Party. In any event, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimexcept as otherwise provided herein, 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 may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume 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 election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such actionThird Party Claim, with its counsel and at its own expense; provided, however, that if or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party, or if the Indemnifying Party fails and which could be materially adverse to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. If then the Indemnified Party assumes shall have the defense of the claimright to be represented by counsel selected by it. In such an event, the Indemnifying Party shall reimburse the Indemnified Party for pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party provided that the Indemnifying Party shall not be liable for the fees and expenses of counsels retained more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full (subject to the Sellers' Basket or the WRF Basket, as applicable) by the party settling or compromising such claim, the settlement or compromise includes a complete release of the other party or parties hereto and, in the case of a settlement or compromise by the Indemnified Party, the Indemnifying Party has abandoned the defense of such Third Party Claim) over the objection of the other, provided, however, that consent to settlement or compromise shall not be unreasonably delayed or withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise The Indemnifying Party shall have the right to indemnity hereunder resulting from direct, through counsel of its own choosing, the defense or arising out settlement of any claim action or legal proceeding by a person who is not a party to brought against the AgreementIndemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party mayor, upon written notice regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Indemnified Party, Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soproceed ing, the Indemnified Party may assume the defense of such 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. 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 such defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks fails to question the manner in which defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party defended such third-party claim shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or the amount or nature settlement of any such settlementaction or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the burden right to prove by a preponderance participate in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the evidence that foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party did and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not defend or settle be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in con nection with such third-Third Party Claim. The party claim in a reasonably prudent mannerdirecting the defense shall pursue such defense diligently and promptly. The parties agree to render, without compensation but shall cooperate in the defense shall pursue such defense diligently and promptly. The parties shall cooperate in 48 57 the defense of all Third Party Claims. In connection 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 proper and adequate defense of any actionThird Party Claim, suit each party shall make available to the party controlling such defense any books, records or proceedingother documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense, whether or not subject provided appropriate arrangements are made to indemnification hereundersafeguard the confidentiality of such materials.

Defense. In connection with any claim giving rise The Indemnifying Party shall have the right to indemnity hereunder resulting from direct, through counsel of its own choosing, the defense or arising out settlement of any claim action or legal proceeding by a person who is not a party to brought against the AgreementIndemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party mayor, upon written notice regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Indemnified Party, Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soproceeding, the Indemnified Party may assume the defense of such 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. 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 such defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks fails to question the manner in which defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party defended such third-party claim shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or the amount or nature settlement of any such settlementaction or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the burden right to prove by a preponderance participate in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the evidence that foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party did and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not defend or settle be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.3(b), and the indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such third-Third Party Claim. The party claim in a reasonably prudent mannerdirecting the defense shall pursue such defense diligently and promptly. The parties agree to render, without compensation but shall cooperate in the defense of all Third Party Claims. In connection 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 proper and adequate defense of any actionThird Party Claim, suit each party shall make available to the party controlling such defense any books, records or proceeding, whether other documents within its control that are reasonably requested in the course of or not subject to indemnification hereundernecessary or appropriate for such defense.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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 Indemnifying Party shall be entitled to participate in (but not control) the defense of any such actionthereof and, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails so chooses, to take assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the reasonable steps necessary to diligently defend the claim after receiving notice from fees and expenses of counsel employed by the Indemnified Party that it believes for any period during which the Indemnifying Party has failed not assumed the defense thereof. If the Indemnifying Party so elects to do so, the Indemnified Party may assume the defense of such claim; provideda Third Party Claim, 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. If the Indemnified Party assumes the defense of the claim, then the Indemnifying Party shall reimburse not be liable to the Indemnified Party for the reasonable fees and expenses of counsels retained counsel subsequently incurred by the Indemnified Party and in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third Party Claim, the Indemnifying Party shall be entitled provide to participate in 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 (but not controlii) the Indemnifying Party’s assumption of the defense of such claimThird Party Claim shall not signify any agreement, with its counsel and at its own expenseobligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party thereafter seeks to question the manner in which assumes such defense, then the Indemnified Party defended such third-party claim or shall have the amount or nature of any such settlementright to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall have control such defense. If the burden Indemnifying Party chooses to prove by defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include 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 preponderance mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the evidence that Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party did not defend shall (upon further notice) have the right to defend, compromise or settle of such third-party claim in a reasonably prudent manner. The parties agree Third Party Claim or consent to render, without compensation but the entry of judgment with reimbursement for out-of-pocket costs, respect to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the made against an Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 then the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claimthe Third Party Claim and, with its counsel and at its own expenseif the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the Indemnifying Party thereafter seeks so elects to question assume the manner in which the Indemnified defense of a Third Party defended such third-party claim or the amount or nature of any such settlementClaim, then the Indemnifying Party shall have the burden not be liable to prove by a preponderance of the evidence that the Indemnified Party did for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of the Third Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in the defense of the Third Party Claim and to employ counsel, at its own expense, 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. 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. If the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of the Third Party Claim or fails to defend or settle such third-party claim the Third Party Claim actively and in a reasonably prudent mannergood faith, then the Indemnified Party shall (upon further notice to the Indemnifying Party) have the right to undertake the defense of the Third Party Claim. 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 Indemnifying Party shall obtain the prior written approval of each other in order to insure the proper and adequate defense Indemnified Party before entering into any settlement of any action, suit Third Party Claim that does not include as an unconditional term the giving by the Person or proceeding, whether Persons asserting such claim an unconditional release from all liability related to or associated with such claim (with such approval not subject to indemnification hereunderbe unreasonably withheld).

Defense. (i) In connection with any claim giving rise to indemnity hereunder resulting from or arising out the case of any claim or legal proceeding by a person who is not a third party to the Agreementclaim, the Indemnifying Party at may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its sole cost and expense and obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with those available respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or if (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from shall inform the Indemnified Party that it believes within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to do so, the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party may assume against a third party claim), the defense parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of such claim; provided, further, that the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party may shall not settle such or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. 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 defense of such claim, with its counsel and at its own expenseconditioned or delayed. If the Indemnifying Party thereafter seeks to question does not assume the manner in which defense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party defended may defend against such third-party claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the amount Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or nature 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such settlementIndemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the Indemnifying Party shall have defense and settlement of such Indemnifiable Claim and the burden to prove by a preponderance exchange of information relevant thereto, (D) unless otherwise agreed, share the evidence that 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-out- of-pocket costscosts of such defense and settlement (including the costs of investigation, to each other such assistance as they may reasonably require of each other in order to insure response and mitigation) equally until the proper and adequate defense of any action, suit or proceeding, whether or not subject parties' respective rights to indemnification hereunderfor such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementlimitations set forth in this Section 9.5(b), in the Indemnifying event of a Third Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden right to prove elect to conduct and 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 (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof, and (ii) if requested by a preponderance the Indemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of the evidence Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the Indemnified Party did may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (1) the Indemnifying Party shall not defend or settle such third-party claim in a reasonably prudent manner. The parties agree have given notice of its election 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 conduct and control the proper and adequate defense of any actionthe Third Party Claim within fifteen (15) days after the Indemnified Party has given a Claim Notice thereof, suit (2) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (3) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest, or proceeding(4) the Third Party Claim is for injunctive, whether equitable or not subject other non-monetary relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to indemnification hereundercontrol the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense.

Defense. In connection with any the case of a Claim involving the assertion of a claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not third party (whether pursuant to a party to the Agreementlawsuit or other legal action or otherwise, a “Third-Party Claim”), the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume take control of the defense and investigation of such Third-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 claim Third-Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to 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 proceeding within thirty (30) days after written notice proceedings and, at the sole cost and expense of the claim is received subject Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a reservation settlement of rights to contest its indemnity obligation and obtain reimbursement or the entry of any judgment arising from any such Third-Party Claim without the prior written consent of the Indemnified Party for its costs and expenses in defending and settling same(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 actionThird-Party Claim, with its own counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available shall be entitled to settle any Third-Party Claim involving criminal penalties, civil fines or harm without the consent, but at the expense, of the Indemnifying Party, or Party if the Indemnifying Party fails shall unreasonably fail to take reasonable steps necessary do so after being requested to diligently defend do so by the claim after receiving notice from Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may will assume the defense of such claim; providedThird-Party Claim within thirty (30) days after the Indemnifying Party receives notice of such claim from the Indemnified Party: (a) the Indemnified Party may defend against such Third-Party Claim in such manner as it may deem reasonably appropriate, further, provided that the Indemnified Party may shall not settle consent to a settlement of or the entry of any judgment arising from such claim Third-Party Claim without the prior written consent of the Indemnifying Party, Party (which consent may shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees withheld or delayed); and expenses of counsels retained by the Indemnified Party and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claimaction, with its counsel and at its own expense. If Regardless of which Party shall assume the Indemnifying defense of the Third-Party thereafter seeks Claim, the Parties agree to question cooperate fully with one another in connection therewith. Such cooperation shall include the manner in providing of records and information which the Indemnified are relevant to such Third-Party defended such third-party claim or the amount or nature Claim and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any such settlementmaterial provided hereunder and to act as a witness or respond to legal process, in each case to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence extent that the Indemnified Party did not defend being requested to provide records and information or settle such third-party claim in a reasonably prudent manner. The parties agree to render, make employees and officers available can do so without compensation but with reimbursement for out-of-pocket costs, waiving any evidentiary privileges to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderwhich it is entitled.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or #297907 -35- defend such Third Party Claim, upon written notice to the Indemnified Partyit shall, assume the defense of any such claim or legal proceeding within thirty (30) days after written receiving notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Third Party Claim (ten (10) days if the Indemnified Party for 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 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 election to do so as herein provided, or otherwise fails to pursue the defense of such Third Party Claim with reasonable diligence, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or 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 defending and settling sameconnection therewith shall be paid by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel 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 action, with its counsel and at its own expenseThird Party Claim is monetary damages that are paid in full by the Indemnifying Party) over the objection of the other; provided, however, that if there are one consent to settlement or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may compromise shall not be unreasonably withheld. If withheld by the Indemnified Party assumes the defense of the claimParty. In any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. (i) In connection with any claim giving rise to indemnity hereunder resulting from or arising out the case of any claim or legal proceeding by a person who is not a third party to the Agreementclaim, the Indemnifying Party at may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its sole cost and expense and obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with those available respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or if (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from shall inform the Indemnified Party that it believes within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to do so, the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party may assume against a third party claim), the defense parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of such claim; provided, further, that the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party may shall not settle such or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. 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 defense of such claim, with its counsel and at its own expenseconditioned or delayed. If the Indemnifying Party thereafter seeks to question does not assume the manner in which defense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party defended may defend against such third-party claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the amount Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or nature 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such settlementIndemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the Indemnifying Party shall have defense and settlement of such Indemnifiable Claim and the burden to prove by a preponderance exchange of information relevant thereto, (D) unless otherwise agreed, share the evidence that 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 costscosts of such defense and settlement (including the costs of investigation, to each other such assistance as they may reasonably require of each other in order to insure response and mitigation) equally until the proper and adequate defense of any action, suit or proceeding, whether or not subject parties' respective rights to indemnification hereunderfor such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties.

Defense. In connection with Unless the Parties otherwise agree in writing, each Party shall have the first right, but not the obligation, subject to any claim giving rise intervening rights of the other Party under applicable Law, to indemnity hereunder resulting from or arising out defend and control the defense of any claim or legal proceeding by Third Party Infringement Action that names such Party as a person who is not a party to the Agreementdefendant, the Indemnifying Party using counsel of its own choice, at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available a Third Party Infringement Action is […***…], then […***…] shall have the first right, but not the obligation, to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume and control the defense of such claimThird Party Infringement Action, using counsel of its own choice, […***…]. In any event, each Party may participate in any such Third Party Infringement Action with counsel of its choice at its own cost and expense; provided, further, provided that the Indemnified controlling Party may not settle shall retain the right to control such claim without the prior written consent Third Party Infringement Action. Without limitation of the Indemnifying Partyforegoing, which consent may not if the controlling Party finds it necessary or desirable to join the other Party as a party to any such Third Party Infringement Action, such other Party shall execute all papers and perform such acts as shall be unreasonably withheldreasonably required. If the Indemnified controlling Party assumes elects (in a written communication submitted to the other Party within a reasonable amount of time after notice of the Third Party Infringement Action) not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such Third Party Infringement Action, the controlling Party shall do so within such time periods so that such other Party is not prejudiced by any delays, and such other Party shall have the right, […***…], to conduct and control the defense of such Third Party Infringement Action using counsel reasonably acceptable to the other Party at its sole cost and expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such Third Party Infringement Action, including by providing the other Party with copies of all pleadings filed in such action. The controlling Party shall allow the other Party, to the extent such other Party is participating in the Third Party Infringement Action, reasonable opportunity to participate in 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderclaims.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume 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 election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the 57 Indemnified Party in (but not control) the conduct of the defense of any such action, with its counsel and at its own expense; provided, however, that if Third Party Claim or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim. In such an event, the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from shall indemnify the Indemnified Party that it believes for the fees and disbursements of counsel to each of the Indemnifying Party has failed to do soand the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any claim (unless the defense 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 objection of the other; providedPROVIDED, furtherHOWEVER, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may to settlement or compromise shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimIn any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the burden receipt of appropriate confidentiality agreements. Notwithstanding anything to prove by the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a preponderance of the evidence that Third Party Claim, the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree shall, subject to renderthe terms and conditions of this Article X, without compensation but with reimbursement for out-of-pocket costs, have the right to each other such assistance as they may reasonably require of each other in order to insure assume the proper and adequate defense of any actionsuch Third Party Claim; PROVIDED, suit or proceedingHOWEVER, whether or not 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 applicable and the Indemnifying Party shall, subject to indemnification hereunderthe terms and conditions of this Article X, indemnify the Indemnified Party for any costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of such Third Party Claim.

Defense. In connection The Indemnified Party shall have the right and obligation to defend against, negotiate, settle or otherwise deal with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Third-Party at its sole cost and expense and with counsel reasonably satisfactory to Claim in good faith but otherwise in such manner as the Indemnified Party may, upon written notice deems appropriate and to the Indemnified Party, assume the defense be represented by counsel of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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 sameown choice. The Indemnified Party shall not admit any liability with respect thereto or settle, compromise, pay or discharge the same without the consent of the Indemnifying Party (or, in the case of indemnification under Section 7.1(b), the Company Stockholder Representative), which consent shall not be entitled to participate unreasonably withheld, so long as the Indemnified Party is contesting or defending the same with reasonable diligence and in (but not control) the defense of any such action, with its counsel and at its own expensegood faith; provided, however, that if there are one or more legal defenses available to the Indemnifying Party may participate in any proceeding with counsel of its choice and at its expense. In the event the Indemnified Party that conflict fails to defend against, negotiate, settle or otherwise deal with those available to the Indemnifying Partysuch Third Party Claim as provided above in this Section 7.3(b), or if then the Indemnifying Party fails shall have the right to take reasonable steps necessary 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 diligently defend the claim after receiving notice from 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 that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense from all liability in respect of such claim; providedThird-Party Claim (other than pursuant to the terms of the settlement), further(B) if the judgment or settlement involves any injunctive or other equitable relief, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If and (C) if the judgment or settlement with respect to an Indemnified Party assumes the defense involves any amount in excess of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained indemnification obtained by the Indemnified Party and hereunder, without the Indemnifying Party shall be entitled to participate in (but not control) the defense prior written consent of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderParty.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Except as otherwise provided in this Agreement, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Seller Indemnified Party may, upon written notice to the or Buyer Indemnified Party, assume as the defense of case may be), any Third Party Claim. If the Indemnifying Party elects to compromise or defend such claim or legal proceeding Third Party Claim, it shall, within thirty (30) days after written receiving notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Third Party Claim (ten (10) days if the Indemnified Party for 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 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 election to do so as provided in this Section 8.04, or otherwise abandons the defense of such Third Party Claim, (1) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (2) the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained in this Agreement, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses or claims available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be entitled materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to participate in (but not control) the defense of such Third Party Claim with such Indemnified Party's own counsel. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such actionThird Party Claim is monetary damages that are paid in full by the Indemnifying Party, with its counsel and at its own expensethe Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; provided, however, that if there are one consent to settlement or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may compromise shall not be unreasonably withheld. If withheld by the Indemnified Party assumes the defense of the claimParty. In any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided in this Agreement, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreementmade against an indemnified party, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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 indemnifying party will be entitled to participate in (but not control) the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to the indemnified party. Should the indemnifying party so elect to assume the defense of any a Third Party Claim, the indemnifying party will not be liable to the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the indemnifying party assumes such actiondefense, with its counsel the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof; provided, however, that if there are one the indemnified party's counsel determines that the indemnified party has or more legal may have defenses available to the Indemnified Third Party that conflict Claim apart from or conflicting with those available the defenses of the indemnifying party, then the indemnified party shall be entitled to retain its own separate counsel and the Indemnifying Party, or if indemnifying party shall be liable for legal expenses incurred by the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume indemnified party in the defense of such claim; providedThird Party Claim. If the indemnifying party chooses to defend any Third Party Claim, furtherall the parties thereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) access to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, that and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnified indemnifying party shall have assumed the defense of a Third Party may Claim, the indemnified party shall not settle admit any liability with respect to, or settle, compromise or discharge such claim Third Party Claim without the indemnifying party's prior written consent of the Indemnifying Party, (which consent may shall not be unreasonably withheld). If the Indemnified Party assumes indemnifying party shall have assumed the defense of the claima Third Party Claim, the Indemnifying indemnifying party shall not settle such Third Party Claim without the indemnified party's prior written consent (which consent shall reimburse not be unreasonably withheld). Notwithstanding the Indemnified Party for foregoing, if there is a reasonable probability that the reasonable fees and expenses of counsels retained by the Indemnified Party and the Indemnifying Party shall indemnifying party will not be entitled able to participate in (but not control) the defense of such claim, with satisfy its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementindemnification obligations under this Section 7, the Indemnifying Party shall indemnified party will have the burden right to prove by a preponderance of defend and, after reasonable consultation with the evidence that the Indemnified Party did not defend indemnifying party, to compromise 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third-Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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 Indemnifying Party shall be entitled to participate in (but not control) the defense of any such actionthereof and, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails so chooses, to take reasonable steps necessary to diligently defend assume the claim after receiving notice from the Indemnified Party that it believes defense thereof with counsel selected by the Indemnifying Party has failed and reasonably satisfactory to do so, the Indemnified Party. If the Indemnifying Party may so elects to assume the defense of such claim; provideda Third-Party Claim, 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. If the Indemnified Party assumes the defense of the claim, then the Indemnifying Party shall reimburse not be liable to the Indemnified Party for the reasonable fees and expenses of counsels retained counsel subsequently incurred by the Indemnified Party and in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third-Party Claim, the Indemnifying Party shall be entitled provide to participate in 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 (but not controlii) the Indemnifying Party’s assumption of the defense of such claimThird-Party Claim shall not signify any agreement, with its counsel and at its own expenseobligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third-Party Claim. If the Indemnifying Party thereafter seeks to question the manner in which assumes such defense, then the Indemnified Party defended such third-party claim or shall have the amount or nature of any such settlementright to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall have control such defense. If the burden Indemnifying Party chooses to prove by defend any Third-Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation shall include 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 preponderance mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the evidence that Indemnifying Party has not within ten (10) Business Days after receipt of an Indemnification Notice relating to a Third-Party Claim, chosen to assume defense of a Third-Party Claim or fails to defend such Third-Party Claim actively and in good faith, then the Indemnified Party did not shall (upon further written notice) have the right to defend and, subject to Section 8.05(c), compromise or settle of such thirdThird-party claim Party Claim or consent to the entry of judgment with respect to 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 case at the cost and expense of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderIndemnifying Party.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume 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 election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the reasonable costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such action36 42 Third Party Claim, with its counsel and at its own expense; provided, however, that if or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim insofar as it relates to the Indemnified Party. In such an event, the Indemnifying Party fails shall pay the reasonable fees and disbursements of counsel to take reasonable steps necessary to diligently defend the claim after receiving notice from Indemnifying Party or Parties and the Indemnified Party provided that it believes the Indemnifying Party has failed to do soshall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any Claim (except that the defense Indemnifying Party may settle or compromise a Claim if the sole relief payable to a third party in respect of such claim; 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, furtherhowever, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may to settlement or compromise shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimIn any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any Claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. 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 intent to do so, and the Indemnified Party shall 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 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 of any of its rights as against the Indemnifying Party), compromise or 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 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 the written notice advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of any such claim or legal proceeding within thirty (30) days after written notice of Third Party Claim. In such an event, the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnifying Party shall indemnify the Indemnified Party for its costs the fees and expenses in defending disbursements of counsel to each of the Indemnifying Party and settling samethe Indemnified Party. The Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party shall be entitled may settle or compromise any claim (unless the sole relief payable to participate a third party in (but not controlrespect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the defense objection of any such action, with its counsel and at its own expensethe other; provided, however, that if there are one consent to settlement or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may compromise shall not be -------- ------- unreasonably withheld. If the Indemnified Party assumes the defense of the claimIn any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the burden receipt of appropriate confidentiality agreements. Notwithstanding anything to prove by the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a preponderance of the evidence that Third Party Claim, the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree shall, subject to renderthe terms and conditions of this Article X, without compensation but with reimbursement for out-of-pocket costs, have the right to each other such assistance as they may reasonably require of each other in order to insure assume the proper and adequate defense of any actionsuch Third Party Claim; provided, suit or proceedinghowever, whether or not 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 applicable and the Indemnifying Party shall, subject to indemnification hereunderthe terms and conditions of this Article X, indemnify the Indemnified Party for any costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of such Third Party Claim.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out Except as otherwise provided herein, in the case of any claim or legal proceeding ------- asserted by a person who Person that is not a party to the Agreementthis Agreement (a "Third Party ----------- Claim"), the an Indemnifying Party may elect to compromise or defend, at its sole cost and such ----- Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If an Indemnifying Party elects to compromise or defend such Third Party Claim, upon written notice to it shall promptly notify the Indemnified PartyParty and any other Indemnifying Parties of its intent to do so, assume and the Indemnified Party shall cooperate, at the expense of the applicable Indemnifying Party or Indemnifying Parties, in the compromise of, or defense against, such Third Party Claim. For so long as no Indemnifying Party elects to compromise or defend against the Third party Claim, fails to notify the Indemnified Party of its election to do so, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against any applicable Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by an applicable Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the applicable Indemnifying Party or Indemnifying Parties pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (iii) there is a conflict of interest between an applicable Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such action, with its counsel and at its own expense; provided, however, that if Third Party Claim or (iv) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the an applicable Indemnifying Party and which could be materially adverse to such Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from then the Indemnified Party that it believes shall have the Indemnifying Party has failed right to do so, the Indemnified Party may assume and direct the defense of such claim; providedThird Party Claim. In such an event, further, that the applicable Indemnifying Party or Indemnifying Parties shall pay the reasonable fees and disbursements of their own counsel and one counsel to all the Indemnified Party may not settle such claim without Parties. Notwithstanding the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimforegoing, the Indemnifying Party shall reimburse not have the Indemnified Party for right to assume control of such defense and shall pay the reasonable fees and expenses of counsels counsel retained by the Indemnified Party and Party, if the claim over which the Indemnifying Party shall be entitled seeks to participate assume control (i) seeks non-monetary relief, (ii) involves criminal or quasi-criminal allegations, or (iii) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. In any event, except as otherwise provided herein, any applicable Indemnified Party and any Indemnifying Party that has any liability with respect to such claim may each participate, at its own expense, in (but not control) the defense of such Third Party Claim without, in the case of such Indemnified Party, any right to control such defense. If an Indemnifying Party chooses to defend any claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended shall make available to such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the ------- Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume 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 election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty (30) days after written notice of Third Party Claim, the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim including the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such actionThird Party Claim, with its counsel and at its own expense; provided, however, that if or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and 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 fees and disbursements of a single counsel to the Indemnified Party shall be included in the loss suffered by the Indemnified Party in respect of such Third Party Claim. Whether or if not the Indemnifying Party fails to take reasonable steps necessary to diligently defend shall have assumed the claim after receiving notice from the Indemnified defense of a Third Party that it believes the Indemnifying Party has failed to do soClaim, the Indemnified Party may assume the defense of shall not admit any liability with respect to, or settle, compromise or discharge, such claim; provided, further, that the Indemnified Third Party may not settle such claim Claim without the Indemnifying Party's prior written consent of the Indemnifying Party, (which consent may shall not be unreasonably withheld). If the Indemnified Indemnifying Party assumes shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, 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 reimburse not be entitled to assume the Indemnified defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsels retained counsel incurred by the Indemnified Party and 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 reasonably determines, based on the opinion of its outside counsel, cannot be separated form any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to participate in (but not control) assume the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks portion relating to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereundermoney damages.

Defense. In connection with any claim giving rise Except as otherwise provided herein, an Indemnifying Party may elect to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreementdefend, at the Indemnifying Party at its sole Party’s own cost and expense and with by the Indemnifying Party’s own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to defend such Third Party Claim, upon written the Indemnifying Party shall, within ten (10) days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall 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 any other action which the Indemnified Party or its counsel deem reasonably necessary to protect the Indemnified Party’s interests. If any Indemnifying Party elects not to defend the Third Party Claim, or 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, (and during any other period in which an Indemnifying Party has been given a reasonable opportunity to assume, but has not assumed, the defense of such 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 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 Indemnified Party shall be required to 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 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 claim or legal proceeding within thirty (30) days after written notice Third Party Claim as part of the claim “Indemnified Losses” hereunder) if the Third Party Claim is received subject reasonably likely to a reservation result in the imposition of: (i) monetary damages in excess of rights to contest its indemnity obligation and obtain reimbursement from 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 for its costs and expenses in defending and settling sameParty. The An Indemnified Party shall be entitled to participate in not settle or compromise any Action (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the extent such Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim is seeking indemnification in respect thereof) without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party elects to defend any Action, the Indemnified Party assumes 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 claimreasonable 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 reimburse the Indemnified Party be liable for the reasonable fees and expenses of counsels retained by counsel to the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in each jurisdiction for which the Indemnified Party defended determines counsel is required (and such third-party claim or the amount or nature of any such settlement, the Indemnifying Party amounts shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification be deemed “Indemnifiable Losses” hereunder).

Defense. (i) In connection with any claim giving rise to indemnity hereunder resulting from or arising out the case of any claim or legal proceeding by a person who is not a third party to the Agreementclaim, the Indemnifying Party at may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its sole cost and expense and obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with those available respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party’s incentive to defend such claim could reasonably be expected to be materially compromised, or if (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party’s rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from shall inform the Indemnified Party that it believes within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to do so, the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party may assume against a third party claim), the defense parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of such claim; provided, further, that the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party may shall not settle such or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent may shall not be unreasonably withheld. 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 defense of such claim, with its counsel and at its own expenseconditioned or delayed. If the Indemnifying Party thereafter seeks to question does not assume the manner in which defense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party defended may defend against such third-party claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the amount Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or nature 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such settlementIndemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the Indemnifying Party shall have defense and settlement of such Indemnifiable Claim and the burden to prove by a preponderance exchange of information relevant thereto, (D) unless otherwise agreed, share the evidence that 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 costscosts of such defense and settlement (including the costs of investigation, to each other such assistance as they may reasonably require of each other in order to insure response and mitigation) equally until the proper and adequate defense of any action, suit or proceeding, whether or not subject parties’ respective rights to indemnification hereunderfor such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties.

Defense. In connection with any claim giving rise The Indemnifying Party shall have the right to indemnity hereunder resulting from direct, through counsel of its own choosing, the defense or arising out settlement of any claim action or legal proceeding by a person who is not a party to brought against the AgreementIndemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party mayor, upon written notice regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Indemnified Party, Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soproceeding, the Indemnified Party may assume the defense of such 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. 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 such defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks fails to question the manner in which defend or if after commencing or undertaking any such defense fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party defended such third-party claim shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or the amount or nature settlement of any such settlementaction or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this SECTION 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the burden right to prove by a preponderance participate in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the evidence that foregoing provisions of this SECTION 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party did and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party will not defend or settle be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this SECTION 10.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such third-Third Party Claim. The party claim in a reasonably prudent mannerdirecting the defense shall pursue such defense diligently and promptly. The parties agree to render, without compensation but shall cooperate in the defense of all Third Party Claims. In connection 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 proper and adequate defense of any actionThird Party Claim, suit each party shall make available to the party controlling such defense any books, records, or proceeding, whether other documents within its control that are reasonably requested in the course of or not subject to indemnification hereundernecessary or appropriate for such defense.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the made against an Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 then the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claimthe Third Party Claim, with its counsel and at its own expenseif the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the Indemnifying Party thereafter seeks assumes such defense, then the Indemnified Party shall have the right, at its sole expense in each instance, to question participate in the manner defense of the Third 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 Indemnified 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 defended such third-party claim or will be fully indemnified hereunder by the amount or nature of any such settlement, 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 setting forth an election to so assume the defense within thirty (30) days of receiving the Indemnification Notice relating to a Third Party Claim and an acknowledgment of its obligations to indemnify the Indemnifying Party under this Agreement in respect of such Third Party Claim, (ii) the Third Party Claim seeks solely monetary damages, (iii) the Third Party 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 Indemnifying Party (and for which purpose the Parties hereby agree that the counsel listed in Section 13.9 are satisfactory), (v) it is reasonably likely that a judgment, finding or other resolution of the Third Party Claim that is adverse to the Indemnifying Party will not have a material adverse impact on the Business of the Company or Buyer, and (vi) the Indemnifying Party has not determined in good faith that a joint representation would be inappropriate because of a conflict of interest. If the Indemnifying Party (x) notifies the Indemnified Party in writing that it elects not to assume or to continue control the defense of the Third Party Claim or (y) is otherwise not entitled to assume or control the defense of the Third Party Claim, then the Indemnified Party shall (upon further written notice to the Indemnifying Party) have the burden right to prove by a preponderance undertake the defense of the evidence Third Party Claim; provided that the Indemnified Party did shall not defend settle or compromise, or enter into any agreement to settle such third-party claim in a reasonably prudent manner. The parties agree to renderor compromise, any Third Party Claim without compensation but with reimbursement for out-of-pocket coststhe prior 60 written consent of the Indemnifying Party (which shall not be unreasonably withheld, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit conditioned or proceeding, whether or not subject to indemnification hereunderdelayed).

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. 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 intent to do so, and the Indemnified Party shall 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 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 of any of its rights as against the Indemnifying Party), compromise or 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 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 written notice advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel 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 claim (however, 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 or legal proceeding within thirty (30) days after written notice without the consent of the claim is received subject to a reservation Indemnified Party) over the objection 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, with its counsel and at its own expenseother; provided, however, that if there are one consent to -------- ------- settlement or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may compromise shall not be unreasonably withheld. If withheld by the Indemnified Party assumes the defense of the claimParty. In any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementlimitations set forth in this Section 7.5(b), in the Indemnifying event of a Third Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden right (exercisable by written notice to prove by the Indemnified Party within ten (10) days after the Indemnified Party has given a preponderance Claim Notice of the evidence Third Party Claim) to elect to conduct and control, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party did 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 defend 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 of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or settle potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then in each such third-case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the 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 controlling the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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 Indemnifying Party shall be entitled to participate in (but not control) the defense of any such actionthereof and, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails so chooses, to take assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the reasonable steps necessary to diligently defend the claim after receiving notice from fees and expenses of counsel employed by the Indemnified Party that it believes for any period during which the Indemnifying Party has failed not assumed the defense thereof. If the Indemnifying Party so elects to do so, the Indemnified Party may assume the defense of such claim; provideda Third Party Claim, 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. If the Indemnified Party assumes the defense of the claim, then the Indemnifying Party shall reimburse not be liable to the Indemnified Party for the reasonable fees and expenses of counsels retained counsel subsequently incurred by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) connection with the defense of such claim, with its counsel and at its own expensethereof. If the Indemnifying Party thereafter seeks to question the manner in which assumes such defense, then the Indemnified Party defended such third-party claim or shall have the amount or nature of any such settlementright to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that control such defense and the Indemnified Party did shall pay the expense of his or its separate counsel. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of crossclaims or counterclaims relating to such Third Party Claim. Such cooperation shall include, without limitation, 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 of the Indemnified Party available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If, but only if the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further written notice to the Indemnifying Party) have the right thereafter to defend, compromise 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out As soon as practicable upon the receipt of any claim or legal proceeding by a person who is not a party to the Agreementsuch claim, the Indemnifying Parties shall confer and decide which Party at its sole cost shall commence actions to defend such claim, or if the Parties shall defend such claim jointly. If the selected Party does not commence actions to defend such claim within [**] days after such agreement, then the other Party shall have the right, but not the obligation, to defend any such claim. If the Parties fail to agree as to which Party shall commence actions to defend such claim, and expense and with counsel reasonably satisfactory dispute resolution pursuant to Section 13.3 will result in failure by the Indemnified Parties to meet a litigation deadline in a timely manner, then the Party maythat is the defendant may defend such claim, upon provided that the defending Party shall give written notice to the Indemnified Partynon-defending Party and shall consider comments by the non-defending Party in good faith. In any event, assume the non-defending Party shall reasonably cooperate with the Party conducting the defense of the claim. If such claim is solely related to the 435 Compound and/or the 055 Compound, Xxxxxxx shall have the right to defend such claims and shall bear any cost and expenses of the defense of any such Third Party infringement claim or legal proceeding within thirty (30) days after written notice of the and shall have sole rights to any recovery, and if such claim is received subject solely related to a reservation of rights the Idenix Compound, Idenix shall have the right to contest its indemnity obligation defend such claims and obtain reimbursement from Indemnified Party for its costs shall bear any cost and expenses in defending and settling same. The Indemnified Party shall be entitled to participate in (but not control) of the defense of any such action, with its counsel Third Party infringement claims and at its own expense; provided, however, shall have sole rights to any recovery. If the Parties agree that if there are one or more legal defenses available a claim is related to the Indemnified Party that conflict with those available 435 Compound and/or 055 Compound, on the one hand, and the Idenix Compound, on the other hand, or the claim is not related to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so435 Compound, the Indemnified Party may assume 055 Compound or the Idenix Compound, but is related to any Collaboration Trial, Xxxxxxx shall bear [**] percent ([**]%), and Idenix shall bear [**] percent ([**]%) of any costs and expenses of the defense of any such claim; providedThird Party infringement claim and shall share equally any recovery. Neither Party shall enter into any settlement concerning activities under this Agreement that affects the other Party’s rights or interests, furtherincluding any admissions of wrongdoing, that the Indemnified Party may without such other Party’s written consent, not settle such claim without the prior written consent of the Indemnifying Party, which consent may not to be unreasonably withheld. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim withheld or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderdelayed.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementlimitations set forth in this Section 10.5(b), in the Indemnifying event of a Third Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden right (exercisable by written notice to prove by a preponderance of the evidence that the Indemnified Party did within fifteen (15) days after the Indemnified Party has delivered a Claim Notice of the Third Party Claim) to conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s own cost and expense, 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 the Indemnified Party in respect thereof, and (ii) 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. 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. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not defend 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, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or settle potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In any event, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective affiliates and representatives to, cooperate fully in connection with the defense or prosecution of any Third Party Claim, including furnishing such third-records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the 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 controlling the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. 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 intent to do so, and the Indemnified Party shall 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 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 of any of its rights as against the Indemnifying Party), compromise or 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 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 the written notice advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of any such claim or legal proceeding within thirty (30) days after written notice of Third Party Claim. In such an event, the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnifying Party shall indemnify the Indemnified Party for its costs the fees and expenses in defending disbursements of counsel to each of the Indemnifying Party and settling samethe Indemnified Party. The Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party shall be entitled may settle or compromise any claim, (unless the sole relief payable to participate a third party in (but not controlrespect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the defense objection of any such action, with its counsel and at its own expensethe other; provided, however, that if there are one consent to settlement or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may compromise shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimIn any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the burden receipt of appropriate confidentiality agreements. Notwithstanding anything to prove by the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a preponderance of the evidence that Third Party Claim, the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree shall, subject to renderthe terms and conditions of this Article IX, without compensation but with reimbursement for out-of-pocket costs, have the right to each other such assistance as they may reasonably require of each other in order to insure assume the proper and adequate defense of any actionsuch Third Party Claim; provided, suit or proceedinghowever, whether or not 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 applicable and the Indemnifying Party shall, subject to indemnification hereunderthe terms and conditions of this Article IX, indemnify the Indemnified Party for any costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of such Third Party Claim.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementlimitations set forth in this Section 10.5(b), in the Indemnifying event of a Third Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden right (exercisable by written notice to prove by the Indemnified Party within ten (10) days after the Indemnified Party has given a preponderance Claim Notice of the Third Party Claim) to elect to conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof, and (ii) 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 did 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 defend 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 that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or settle potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then in each such third-case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the 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 controlling the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. In connection with If any claim giving rise of the indemnified parties is made or threatened ------- to indemnity hereunder resulting from be made a defendant in or arising out of any claim or legal proceeding by a person who is not a party to any action or proceeding, judicial or administrative, instituted by any third party for the Agreementliability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Section 10 (any such third party action or proceeding being referred to as an "Indemnification Claim"), the Indemnifying Party indemnified party or parties shall give prompt notice thereof to the 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 sole cost and expense and with counsel reasonably satisfactory own expense, to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30any litigation to which this Section 10(d) days after written notice of may be applicable, by counsel reasonably satisfactory to the claim 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 indemnified party or parties; provided, -------- that 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 not adequately represent, the indemnified party or parties' interests), to participate in (but such claim, action or proceeding and to be represented by attorneys of its or their own choosing. If the indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not control) concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such actionclaim or litigation, shall not, except with its counsel 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 at its own expense; provided, however, that if there are one or more legal defenses available complete release from all liability in respect to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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 withheldor litigation. If the Indemnified Party assumes the defense of the claimIndemnification Claim arises under Section 10(b)(iii), the Indemnifying Party indemnifying party shall reimburse defend 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-third party claim in a reasonably prudent manner. The parties agree the name of the indemnifying party and pay any amounts to render, without compensation but with reimbursement for out-of-pocket costs, be indemnified under such section directly to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderclaiming party.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party Subject to the Agreementlimitations set forth in this Section 11.5(b), in the Indemnifying event of a Third Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden right (exercisable by written notice to prove by the Indemnified Party within ten (10) days after the Indemnified Party has given a preponderance Claim Notice of the Third Party Claim) to conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s own cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof, and (ii) 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 Loss and Expense resulting from the Third Party Claim; provided, that the Indemnified Party did may participate, through separate counsel chosen by it and at its own cost and expense, in the defense of the Third Party Claim. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not defend have given notice of its election to conduct and control the defense of the Third Party Claim within such 10-day period, (B) the Indemnifying Party shall fail to conduct such defense diligently, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest, or settle (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In any event, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective affiliates and representatives to, cooperate fully in connection with the defense or prosecution of any Third Party Claim, including furnishing such third-records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the 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 controlling the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderThird Party Claim shall keep the non-controlling party advised of the status thereof and shall consider in good faith any recommendations made by the non-controlling party with respect thereto.

Defense. In connection with any claim giving rise The Indemnifying Party shall have the right to indemnity hereunder resulting from direct, through counsel of its own choosing, the defense or arising out settlement of any claim action or legal proceeding by a person who is not a party to brought against the AgreementIndemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or does not provide for a full release of the Indemnified Party mayor, upon written notice regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Indemnified Party, Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soproceeding, the Indemnified Party may assume the defense of such 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. 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 such defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks fails to question the manner in which defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party defended such third-party claim shall have the right to direct, through counsel of its own choosing, the defense or the amount or nature settlement of any such settlementaction or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 11.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the burden right to prove by a preponderance participate in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the evidence that foregoing provisions of this Section 11.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party did and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not defend or settle be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 11.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such third-Third Party Claim. The party claim in a reasonably prudent mannerdirecting the defense shall pursue such defense diligently and promptly. The parties agree to render, without compensation but shall cooperate in the defense of all Third Party Claims. In connection 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 proper and adequate defense of any actionThird Party Claim, suit each party shall make available to the party controlling such defense any books, records or proceedingother documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense; provided, whether or not subject however, that appropriate arrangements are made to indemnification hereundersafeguard the confidentiality of such materials.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the this Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, 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 thirty fifteen (3015) days after written receipt of notice from the Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is received subject not, in the good faith judgment of the Indemnified Party, likely to establish a reservation pattern or practice adverse to the continuing business interests of rights to contest its indemnity obligation and obtain reimbursement from the Indemnified Party for its costs and expenses in defending and settling sameParty. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense of such claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 costscompensation, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to 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 Indemnifying Party, assume 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 election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30A) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or 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 defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such action, with its counsel and at its own expense; provided, however, that if Third Party Claim or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party fails to take shall pay the reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes fees and disbursements of counsel of the Indemnifying Party has failed and one counsel to do soall the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any claim over the defense objection of such claim; the other, provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and provided further, that if the Indemnified 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 not settle such claim without the prior written consent of the Indemnifying Indemnified Party. In any event, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimexcept as otherwise provided herein, 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 may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. 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 defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the 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 such claima Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with its counsel and at its own expensethe defense thereof. If the Indemnifying Party thereafter seeks to question the manner in which assumes such defense, then the Indemnified Party defended shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such third-party claim defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof or actively and in good faith defend such Third Party Claim. If the amount Indemnifying Party chooses to defend any Third Party Claim, all the parties hereto shall cooperate in the defense or nature prosecution of such Third Party Claim. Such cooperation shall include 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 hereunder. If the Indemnifying Party, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim (but in no event more than five (5) business days), chooses not to assume defense of a Third Party Claim or fails to defend such settlementThird Party Claim actively and in good faith, the Indemnified Party shall (upon further notice) have the right to undertake the defense, compromise or settlement of such Third Party Claim or consent to the entry of judgment with respect to such Third Party Claim on behalf of, and for the account and risk of, the Indemnifying Party, and the Indemnifying Party shall have the burden no right to prove by a preponderance of the evidence that challenge the Indemnified Party did not defend Party’s defense, compromise, settlement or settle such third-party claim in a reasonably prudent manner. The parties agree consent 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderjudgment.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out Except as otherwise provided herein, in the case of any claim or legal proceeding asserted by a person who Person that is not a party to the Agreementthis Agreement (a "Third Party Claim"), the an Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If an Indemnifying Party elects to compromise or defend such Third Party Claim, it shall promptly notify the Indemnified Party and any other Indemnifying Parties of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the applicable Indemnifying Party or Indemnifying Parties, in the compromise of, or defense against, such Third Party Claim. For so long as no Indemnifying Party elects to compromise or defend against the Third Party Claim, fails to notify the Indemnified Party of its election to do so, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against any applicable Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by an 59 65 applicable Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the applicable Indemnifying Party or Indemnifying Parties 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 the written notice advice of its counsel, that (iii) there is a conflict of interest between an applicable Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (iv) there are specific defenses available to the Indemnified Party which are different from or additional to those available to an applicable Indemnifying Party and which could be materially adverse to such Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the applicable Indemnifying Party or Indemnifying Parties shall pay the reasonable fees and disbursements of their own counsel and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither any Indemnifying Party nor the applicable Indemnified Party may settle or compromise any claim over the objection of any other Indemnifying Party that has any liability with respect to such claim or legal proceeding within thirty (30) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from any other Indemnified Party for its costs and expenses in defending and settling same. The Indemnified Party shall be entitled that is a party to participate in (but not control) the defense of any such action, with its counsel and at its own expenseclaim; provided, however, that if there are one consent to settlement or more legal defenses available to the compromise shall not be unreasonably withheld by any Person. In any event, except as otherwise provided herein, any applicable Indemnified Party and any Indemnifying Party that conflict has any liability with those available respect to such claim may each participate, at its own expense, in the Indemnifying defense of such Third Party Claim without, in the case of such Indemnified Party, or if the any right to control such defense. If an Indemnifying Party fails chooses to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do soany claim, the Indemnified Party may assume the defense of shall make available to such 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. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate 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 defense of such claimdefense, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, If the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory elects not to assume the Indemnified Party maydefense, upon written notice is not permitted to the Indemnified Party, assume the defense of any such claim or legal proceeding pursuant to paragraph (a), fails to assume the defense within thirty (30) days after written notice from receipt of a Claim Notice, does not diligently defend the Third Party Claim or the Indemnifying Party and any Indemnified Party are both parties to or subjects of such Legal Proceeding and a conflict of interest exists between the Indemnifying Party and such Indemnified Party which has the potential of materially and adversely affecting the interests of the claim 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 such Legal Proceeding, then the Indemnified Party may elect to defend the Third Party Claim and employ counsel reasonably satisfactory to the Indemnifying Party to represent or defend the Indemnified Party against any such action, with its Third Party Claim and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel and at its own expense(such expenditures to be reimbursed promptly after submission of invoices therefor); provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails shall not, in connection with any Action or separate but substantially similar Actions arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for any Indemnified Party, except to take reasonable steps necessary the extent that local counsel, in addition to diligently its regular counsel, is required in order to effectively defend the claim after receiving notice from the Indemnified Party that it believes against such Action. If the Indemnifying Party has failed to do sodoes assume the defense of a Third Party Claim, the Indemnified Party may assume shall have the right to participate in the defense of such claim; provided, further, that the Indemnified Third Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. 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 defense of such claim, with its counsel and Claim at its own expense. If the Indemnifying Party thereafter seeks to question does assume the manner in which the Indemnified defense of a Third Party defended such third-party claim or the amount or nature of any such settlementClaim, the Indemnifying Party shall have the burden reasonably cooperate in providing information to prove by a preponderance of the evidence that and consulting with the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent mannerabout the Third Party Claim. The parties agree to render, without compensation but with reimbursement Indemnifying Party shall be liable for out-of-pocket costs, to each other such assistance as they may reasonably require the fees and expenses of each other in order to insure counsel employed by the proper and adequate Indemnified Party for any period during which the Indemnifying Party has not assumed the defense of any action, suit or proceeding, whether or not subject to indemnification hereundersuch Third Party Claim.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, assume 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 election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such actionThird Party Claim, with its counsel and at its own expense; provided, however, that if or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim insofar as it relates to the Indemnified Party. In such an event, the Indemnifying Party fails shall pay the reasonable fees and disbursements of counsel to take reasonable steps necessary to diligently defend the claim after receiving notice from Indemnifying Party or Parties and the Indemnified Party provided that it believes the Indemnifying Party has failed to do soshall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any claim (unless the defense sole relief payable to a third party in respect of such claim; 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, furtherhowever, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may to settlement or compromise shall not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimIn any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with If any claim giving rise to indemnity hereunder resulting from claim, demand or arising out liability is asserted by any third party against any Indemnified Party (a "Third-Party Claim"), the Indemnified Party will (upon notice of any said claim or legal proceeding by a person who is not a party to demand) promptly notify the AgreementIndemnifying Party, and the Indemnifying Party at its sole cost and expense and shall defend and/or settle any actions or proceedings brought against the Indemnified Party in respect of matters embraced by the indemnity with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party maydoes not promptly defend or settle any such claims, upon written notice to the Indemnified PartyParty shall have the right to conduct and control any defense or settlement, assume at the defense of any such claim or legal proceeding within thirty (30) days after written notice expense of the Indemnifying Party. Except as provided by the preceding sentence, no claim is received subject will be settled or compromised without the prior written consent of each party 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 samebe affected by such settlement or compromise, which consent shall not be unreasonably withheld. The Indemnified Party shall be entitled at all times also have the right to participate fully in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, 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. If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse pay the legal fees of one counsel for the Indemnified Party for if the reasonable fees Third-Party Claim is made both against the Indemnifying Party and expenses the Indemnified Party and the Indemnified Party has been advised by counsel that there would be a conflict of counsels retained by interest in having the same counsel represent both the Indemnified Party and the Indemnifying Party shall be entitled to participate Party. The parties will cooperate in (but not control) the defense of such claim, all Third-Party Claims that may give rise to Indemnifiable Claims hereunder. In connection with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any actionclaim, suit each party will make available to the party controlling such defense any books, records or proceeding, whether or not subject to indemnification hereunderother documents within its control that are reasonably requested in the course of such defense.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. 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 intent to do so, and the Indemnified Party shall 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 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), compromise or 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 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 written notice advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, assume then the Indemnified Party shall have the right to direct the defense of such Third Party Claim with the participation of the Indemnifying Party. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel 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 claim (however, 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 or legal proceeding within thirty (30) days after written notice without the consent of the claim is received subject to a reservation Indemnified Party) over the objection 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, with its counsel and at its own expenseother; provided, however, that if there are one consent to settlement or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such claim; provided, further, that the Indemnified Party may not settle such claim without the prior written consent of the Indemnifying Party, which consent may compromise shall not be unreasonably withheld. If withheld by the Indemnified Party assumes the defense of the claimParty. In any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party may, upon written notice satis- factory to the Indemnified Party), assume 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 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 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 claim or legal proceeding within thirty Third Party Claim (30until such defense is assumed by the Indemnifying Party) days after written notice and (ii) the costs and ex- penses of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for its costs and expenses incurred in defending and settling sameconnection there- with shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such action, with its counsel and at its own expense; provided, however, that if Third Party Claim or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to direct the defense of such Third Party Claim with the participation of the Indemnifying Party. In such an event, the Indemnifying Party fails to take shall pay the reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes fees and disbursements of counsel of the Indemnifying Party has failed and one counsel to do soall the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnify- ing Party nor the Indemnified Party may assume settle or compromise any claim (however, if the defense sole settlement relief payable to a third party in respect of such claim; providedThird Party Claim is monetary damages that are paid in full by the Indemnifying Party, further, that the Indemnified Indemnifying Party may not settle such claim without the prior written consent of the Indemnifying Indemnified Party) over the objection of the other; pro- vided, which however, that consent may to settlement or compromise shall not be unreasonably withheld. If withheld by the Indemnified Party assumes the defense of the claimParty. In any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any per- sonnel or any books, records or other documents within its con- trol that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderde- fense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by If a person who Third Party Claim is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to made against the Indemnified Party, assume then the defense of any such claim or legal proceeding within thirty (30) days after written notice of the claim 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 Indemnifying Party shall be entitled to participate in (but the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, provided that the Indemnifying Party shall not control) have the right to defend or direct the defense of any such actionThird Party Claim that (x) is asserted directly by or on behalf of a Person that is a customer or supplier of the Business, with its or (y) seeks an injunction or other equitable relief against the Indemnified Party. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel and at its own expense; provided, however, that if there are one or more legal defenses available to employed by the Indemnified Party that conflict with those available to the Indemnifying Party, or if the Indemnifying Party fails to take reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes for any period during which the Indemnifying Party has failed not assumed the defense thereof. If the Indemnifying Party so elects to do so, the Indemnified Party may assume the defense of such claim; provideda Third Party Claim, 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. If the Indemnified Party assumes the defense of the claim, then the Indemnifying Party shall reimburse not be liable to the Indemnified Party for the reasonable fees and expenses of counsels retained counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the 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 not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. 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 separate from the counsel employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense. The fees and disbursements of counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be entitled liable for the reasonable fees and expenses of counsel to participate the Indemnified Party in (but not control) each jurisdiction for which the defense of such claim, with its Indemnified Party determines counsel and at its own expenseis required. If the Indemnifying Party thereafter seeks chooses to question defend any Third Party Claim, then the manner Parties shall cooperate in which the defense or prosecution of such Third Party Claim. Such cooperation shall include 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 hereunder. If the Indemnifying Party has not within ten (10) Business Days after receipt of an Indemnification Notice relating to a Third Party Claim, chosen to assume defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party defended shall (upon further written notice) have the right to defend and, subject to Section 7.4(c), compromise or settle of such third-party claim Third Party Claim or {W5975088.1} 33 consent to the amount or nature entry of any judgment with respect to such settlementThird Party Claim, in each case at the cost and expense of the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderParty.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party’s own expense and with by such Indemnifying Party’s own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to 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 Indemnifying Party, assume 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 election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30A) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or 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 defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such action, with its counsel and at its own expense; provided, however, that if Third Party Claim or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party fails to take shall pay the reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes fees and disbursements of counsel of the Indemnifying Party has failed and one counsel to do soall the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any claim over the defense objection of such claim; the other, provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and provided further, that if the Indemnified 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 not settle such claim without the prior written consent of the Indemnifying Indemnified Party. In any event, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense of the claimexcept as otherwise provided herein, 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 may each participate, at its own expense, in (but not control) the defense of such claim, with its counsel and at its own expenseThird Party Claim. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.

Defense. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the AgreementExcept as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at its sole cost and such Indemnifying Party's own expense and with by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party mayClaim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, upon written it shall, within 30 days after receiving notice to of the Third Party Claim (10 days if the Indemnifying Party in good faith 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 Indemnifying Party, assume 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 election to do so as herein provided, or otherwise abandons the defense of any such claim or legal proceeding within thirty Third Party Claim, (30i) days after written notice of the claim is received subject to a reservation of rights to contest its indemnity obligation and obtain reimbursement from Indemnified Party for may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or 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 defending and settling sameconnection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall be entitled to participate reasonably conclude, based upon advice of its outside legal counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in (but not control) the conduct of the defense of any such action, with its counsel and at its own expense; provided, however, that if Third Party Claim or (y) there are one or more legal specific defenses available to the Indemnified Party that conflict with which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, or if then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party fails to take shall pay the reasonable steps necessary to diligently defend the claim after receiving notice from the Indemnified Party that it believes fees and disbursements of counsel of the Indemnifying Party has failed and one counsel to do soall the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may assume settle or compromise any claim (however, if the defense sole settlement relief payable to a third party in respect of such claim; provided, further, Third Party Claim is monetary damages that are paid in full by the Indemnifying Party and if the settlement results in the full and unconditional release of all claims against the Indemnified Party by the person asserting such claim, the Indemnifying Party may not settle such claim without the prior written consent of the Indemnifying Indemnified Party, which consent may not be unreasonably withheld. If ) over the Indemnified Party assumes the defense objection of the claimother. In any event, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shall be entitled to participate may each participate, at its own expense, in (but not control) the defense of such Third Party Claim in which case each party shall cooperate in providing information to and consulting with the other about the claim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks chooses to question the manner in which defend any claim, the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, shall make available to the Indemnifying Party shall have the burden to prove by a preponderance of the evidence any personnel or any books, records or other documents within its control that the Indemnified Party did not defend are reasonably necessary or settle appropriate for such third-party claim in a reasonably prudent manner. The parties agree to renderdefense, 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 proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunderthe receipt of appropriate confidentiality agreements.