Common use of Defense Clause in Contracts

Defense. The Indemnifying Party shall have the right to assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expense.

Defense. The Subject to the limitations set forth in this Section 10.6(b), the Indemnifying Party shall have the right to assume 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. Notwithstanding the foregoing, if (i) the Indemnifying Party shall not have given written notice (A) of its election to conduct and control the defense of the Third Party Claim and (B) that the Indemnifying Party agrees, on behalf of all Indemnifying Parties, that the Third Party Claim is indemnifiable hereunder within thirty (30) days after the Indemnified Party has given notice thereof, (ii) the Indemnified Party shall reasonably determine in good faith, after consultation with its outside counsel, that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest or that the Indemnified Party has material defenses or counterclaims available to it that are not available to the Indemnifying Party (and that cannot be utilized by the Indemnifying Party on behalf of the 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 the Indemnifying Party is potentially liable for with respect to such Third Party Claim taking into account Section 10.4(b) or (v) the Third Party Claim is for injunctive relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim at the Indemnifying Party’s expense sole cost and by expense, not to exceed one law firm in the Indemnifying Party’s own counsel; provided thatUnited States and one firm in any foreign jurisdiction, if the Indemnifying Party (a) fails to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseapplicable.

Defense. The Indemnifying Party shall have the right to assume and control the defense of the Third Party Claim at the Indemnifying If any claim, demand or liability is asserted by any third party against any Indemnified Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume shall, upon the defense within thirty (30) days after the Indemnifying Party receives notice written request of such Third Party Claim from the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify defend any actions or proceedings brought against the Indemnified Party for such Third Party Claimin respect of matters embraced by the indemnity, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then but the Indemnified Party shall have the right to assume conduct and control the control defense, compromise or settlement of any Indemnifiable Claim if the Indemnified Party chooses to do so, on behalf of and for the account and risk of the defense and, Indemnifying Party who shall be bound by the result so obtained to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13provided herein; provided, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentencehowever, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have not settle or compromise any Indemnifiable Claim without the right written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If, after a request to participate defend any action or proceeding, the Indemnifying Party 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 is only presumptive evidence against the Indemnifying Party. The parties shall cooperate in the defense of all third party claims which may give rise to Indemnifiable Claims hereunder. In connection with the defense of any Third Party Claim with counsel selected by it at claim, each party shall make available to the Indemnified Party’s expenseparty controlling such defense, any books, records or other documents within its control that are reasonably requested in the course of such defense.

Defense. The Except as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such In demnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If the Indemnifying Party shall have the right elects to assume and control the defense compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, (10 days if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives states in such notice of such Third Party Claim from the Indemnified Partythat prompt action is required), (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify notify the Indemnified Party for 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, and/or (d) or fails to diligently prosecute 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of such Third Party Claim. In the event that such an event, the Indemnifying Party assumes shall pay the defense 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 without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to -------- ------- settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and continues to diligently prosecute the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim pursuant to the foregoing sentence, Claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party Claimdefend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The An Indemnifying Party shall will have the sole right to assume and control the defense and financial settlement of any Losses for which it is providing indemnification hereunder, including the selection of legal counsel, except that the Indemnifying Party must not agree to any non-financial settlement or term of settlement (including but not limited to any acknowledgement of liability or responsibility) of any Losses without the prior consent of the Third Party Claim relevant Indemnified Party(ies). The Indemnified Party(ies) will, at the Indemnifying Party’s expense sole cost and by expense, cooperate with the Indemnifying Party as reasonably requested in the defense of the Losses, including but not limited to making relevant representatives and documents available to the Indemnifying Party. Nothing herein prevents an Indemnified Party, prior to the resolution of any Losses, from retaining its own legal counsel for the purpose of assuming control of the Indemnified Party’s own counseldefense; provided thathowever, if the Indemnified Party must immediately notify the Indemnifying Party (a) fails to assume in writing of its assumption of the defense within thirty (30) days after defense, and its assumption thereof will relieve the Indemnifying Party receives notice of such Third Party Claim from the Indemnified Party, (b) declines the right to assume the any further indemnification and defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify obligations on behalf of the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute hereunder as of the defense date of such Third Party Claimnotice. Notwithstanding anything to the contrary in this Section 3.2, then the with respect to an Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentenceFederal Institution, the Indemnifying Party shall have the right to control the defense and financial settlement of Losses, including the Third Party Claimselection of legal counsel, as provided herein, except to the extent that the Indemnified Party shall have the right a third party is required by law to participate in the defense of any Third Party Claim with counsel selected by it at defend the Indemnified Party, which requirement may limit or preclude the Indemnifying Party’s expenseobligation to defend, but which shall not affect the Indemnifying Party’s obligations to indemnify and hold harmless hereunder.

Defense. The Indemnifying Party shall have the right Other than with respect to assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatTaxes, if the Indemnifying Party (a) fails as to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, which Section 8.3 controls to the extent that the Indemnifying Party inconsistent with this Section, if any claim, demand or liability is found to be responsible for such Third Party Claim under this Section 13asserted by any third party against any Indemnified Party, the Indemnifying Party shall indemnify upon the written request of the Indemnified Party from and defend any actions or proceedings brought against any Losses incurred by the Indemnified Party in defending such Third Party Claimrespect of matters embraced by the indemnity. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the The Indemnifying Party shall have the right to control the defense of the Third Party any Indemnifiable Claim; provided, provided however, that the Indemnified Party shall have the right to control the defense of a claim under either of the following circumstances: (i) the Indemnifying Party fails to assume the defense of an Indemnifiable Claim within 15 days after receiving written notice of the existence of the claim or fails to diligently conduct the defense of any such claim; or (ii) the Indemnified Party shall reasonably conclude that there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such claim or there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party, in either of which events the Indemnifying Party shall pay the fees and disbursements of counsel to each of the Indemnifying Party and the Indemnified Party. If the Indemnifying Party does not assume such defense or the Indemnified Party has the right to control the defense of the claim, the Indemnified Party may compromise or settle the claim on behalf of and for the account and risk of the Indemnifying Party, who shall be bound by the result. The Indemnifying Party shall not, without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld), settle or compromise any Indemnifiable Claim or permit a default or consent to entry of any judgment unless the claimant and the Indemnifying Party provide to the Indemnified Party an unqualified release from all liability in respect of the Claim. In all cases, the party without the right to control the defense of an Indemnifiable Claim may participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s its own expense.

Defense. (a) The Indemnifying Party shall have the right right, at its expense and at its election, to assume control of the negotiation, settlement and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatthrough counsel of its choice. In such event, if the Indemnifying Party (a) fails to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such Third assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, and/or (d) fails failing which the Indemnifying Party shall be deemed to diligently prosecute have elected not to assume such control. If the defense of Indemnifying Party elects to assume such Third Party Claimcontrol, then the Indemnified Party shall have the right to be informed and consulted with respect to the negotiation, settlement or defenses of such Claim and to retain counsel to act on its behalf, but the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the third party, pay the amount of such difference to the Indemnifying Party. (b) If the Indemnifying Party fails to assume control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against of any Losses incurred by the Indemnified Party in defending such Third Party Claim. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the exclusive right to participate in consent, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defense of any Third Claim, the Indemnifying Party shall not settle any Claim with counsel selected by it at without the written consent of the Indemnified Party’s expense, which consent shall not be unreasonably withheld, conditioned or delayed, unless such settlement provides solely for monetary damages or other monetary payments.

Defense. The 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 shall have at its sole cost and expense and with counsel reasonably satisfactory to the right Indemnified Party may, upon written notice to the Indemnified Party, assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, any such claim or legal proceeding if (a) the Indemnifying Party (a) fails acknowledges to assume the defense Indemnified Party in writing, within thirty (30) fifteen days after the Indemnifying Party receives receipt of notice of such Third Party Claim from the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility obligations to indemnify the Indemnified Party for with respect to all elements of such Third claim, (b) the Indemnifying Party Claimprovides 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, and/or (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not, in the good faith judgment of the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party 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 prosecute 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 Third Party Claimclaim; provided, then further, that the Indemnified Party shall have may not settle such claim without the right to assume the control 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 and, to of the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13claim, the Indemnifying Party shall indemnify reimburse the Indemnified Party from for the reasonable fees and against any Losses incurred expenses of counsels retained by the Indemnified Party in defending such Third Party Claim. In the event that and the Indemnifying Party assumes the defense of a Third Party Claim and continues shall be entitled to diligently prosecute participate in (but not control) the defense of such Third claim, with its counsel and at its own expense. If the Indemnifying Party Claim pursuant thereafter seeks to question the foregoing sentencemanner 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 right burden to control the defense prove by a preponderance of the Third Party Claim, provided evidence that the Indemnified Party shall have did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other in order to insure the right to participate in the proper and adequate defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseaction, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. The Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to assume the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the 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 may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim at within such 15 day period, (B) the Indemnifying Party’s expense 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’s own counsel; provided thatParty to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, if or (D) the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from is for injunctive, equitable or other non-monetary relief against the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for then in each such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then case the Indemnified Party shall have the right to assume control the control defense, compromise or settlement of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13with 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 shall indemnify and the Indemnified Party from shall, and against any Losses incurred 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 defending such Third Party Claimconnection therewith. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentenceaddition, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in party controlling the defense of any Third 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 counsel selected by it at the Indemnified Party’s expenserespect thereto.

Defense. The Except as otherwise provided herein, the Indemnifying Party shall have may elect to pay, compromise or defend (with the right to assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and expenses incurred by the Indemnifying Party in connection therewith for its own account) by such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If the Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, then (i) the Indemnified Party shall have may pay (without prejudice of any of its rights as against the right to assume Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the control Indemnifying Party) and (ii) the costs and expenses of the defense and, Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the extent 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 found 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 responsible reasonably satisfactory to the Indemnified Party), with the expenses incurred by the Indemnifying Party for the account of the Indemnified Party but part of the Loss for which the Indemnified Party is entitled to indemnification pursuant to the 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 the other; provided, however, that (i) consent to settlement or 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 under this Section 13is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party shall indemnify may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, 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 a Third Party Claim and continues to diligently prosecute may each participate, at its own expense, in the defense of such Third Party Claim pursuant to the foregoing sentence, Claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party Claimdefend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The 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 shall have at its sole cost and expense and with counsel reasonably satisfactory to the right Indemnified Party may, upon written notice to the Indemnified Party, assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense 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 receives fails to take reasonable steps necessary to diligently defend the claim after receiving notice of such Third Party Claim from the Indemnified PartyParty that it believes the Indemnifying Party has failed to do so, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute may assume the defense of such Third Party Claimclaim; provided, then further, that the Indemnified Party shall have may not settle such claim without the right to assume the control prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense and, to of the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13claim, the Indemnifying Party shall indemnify reimburse the Indemnified Party from for the reasonable fees and against any Losses incurred expenses of counsels retained by the Indemnified Party in defending such Third Party Claim. In the event that and the Indemnifying Party assumes the defense of a Third Party Claim and continues shall be entitled to diligently prosecute participate in (but not control) the defense of such Third claim, with its counsel and at its own expense. If the Indemnifying Party Claim pursuant thereafter seeks to question the foregoing sentencemanner 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 right burden to control the defense prove by a preponderance of the Third Party Claim, provided evidence that the Indemnified Party shall have 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 right to participate in the proper and adequate defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseaction, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. The If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall have the right be entitled to assume and control participate in the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatand, if the Indemnifying Party (a) fails so chooses, to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, provided that 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 Third 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 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 with counsel selected by it 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’s expense) 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 in any such event the Indemnified Party will not settle the Third Party Claim without the prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld, delayed or conditioned.

Defense. The Indemnifying Party shall have the right to assume and control direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party 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 Third Indemnified Party Claim at or, regardless of the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatterms of such settlement, if the Indemnifying Party (a) fails disputes its liability with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense within thirty (30) days after of any such claim or proceeding, the Indemnified Party may participate in such defense at its own expense. If 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently defend or, after commencing or undertaking any such defense, fails to prosecute the or withdraws from such defense other than as a result of such Third Party Claima settlement, then the Indemnified Party shall have the right to assume direct, at the control Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense andor settlement of any such action or proceeding; provided, to the extent however, that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify if 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 a Third Party Claim and continues to diligently prosecute the defense of any such Third Party Claim 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 foregoing sentence, Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to control 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 foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party 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 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 Party Claim, provided that . The party directing the Indemnified defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party shall have the right to participate in Claims. In connection with the defense of any Third Party Claim with counsel selected by it at Claim, each party shall make available to the Indemnified Party’s expenseparty controlling such defense any books, records or other documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense.

Defense. The If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall have be entitled to participate in the right to assume negotiation, settlement and control the defense thereof with counsel of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatits choice and, if the Indemnifying Party (a) fails so chooses, to assume the negotiation, settlement and defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. 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. If the Indemnifying Party so elects to assume the defense within thirty (30) days after of a Third Party Claim, then the Indemnifying Party receives notice of such Third Party Claim from the Indemnified Party, (b) declines the right shall not be liable to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third the fees and expenses of counsel subsequently incurred by the Indemnified Party Claimin connection with the defense thereof; provided, and/or however, that (di) fails prior to diligently prosecute assuming the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify provide to the Indemnified Party from an undertaking stating that such Indemnifying Party is able to and against any Losses incurred by will assume the Indemnified Party in defending such Third Party Claim. In the event that payment of all defense fees and costs and (ii) the Indemnifying Party assumes the defense Party’s assumption of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to shall not signify any agreement, obligation or commitment on the foregoing sentence, part of the Indemnifying Party shall have the right to control the defense assume or pay any amount awarded to a claimant in respect of the such Third Party Claim. If the Indemnifying Party assumes such defense, provided that then the Indemnified Party shall have the right to participate in the defense of 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 defense. If the Indemnifying Party chooses to 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 mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party has not within thirty (30) Business Days after receipt of an Indemnification Notice relating to a Third Party Claim, chosen to assume defense of a Third Party Claim with counsel selected by it at or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party’s expenseParty shall (upon further written notice) have the right to defend such Third Party Claim. The Indemnified Party shall not take any action the purpose of which is to prejudice the defense of any claim subject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.

Defense. The Indemnifying Party shall have the right to assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within twenty (20) days following its receipt of the notice of such claim, elect to assume the defense within thirty (30) days after or the Indemnifying Party receives notice prosecution of such Third Party Claim from claim, including the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes employment of counsel or accountants at its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the cost and expense. The Indemnified Party shall have the right to assume employ counsel separate from counsel employed by the control Indemnity Obligor in any such action and to participate in such action, but the fees and expenses of such counsel shall be at the Indemnity Obligor’s own expense. (b) Whether or not the Indemnity Obligor chooses to defend or prosecute an indemnification claim under Section 9.4(a), all the parties to this Agreement shall cooperate in the defense andor prosecution of such claim and shall furnish such records, to information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Each party shall act in good faith and in a commercially reasonable manner in addressing any liabilities that may provide the extent that the Indemnifying basis for an indemnifiable claim. (c) No Indemnity Obligor may settle any claim affecting an Indemnified Party is found without such Indemnified Party’s prior written consent, not to be responsible for such Third Party Claim under this Section 13unreasonably withheld, the Indemnifying Party shall indemnify the conditioned or delayed. No Indemnified Party from and against may settle any Losses incurred claim affecting an Indemnity Obligor without such Indemnity Obligor’s prior written consent, not to be unreasonably withheld, conditioned or delayed. (d) In the event of payment by the Indemnity Obligor to the Indemnified Party in defending such Third Party Claim. In the event that the Indemnifying Party assumes the defense connection with any Loss arising out of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentencethird party claim, the Indemnifying Party Indemnity Obligor shall have not be subrogated to and shall not stand in the right to control the defense place of the Third Party Claim, provided that the Indemnified Party shall have the right as to participate any events or circumstances in the defense respect of any Third Party Claim with counsel selected by it at which the Indemnified Party’s expenseParty may have any right or claim against such third party relating to such indemnified matter.

Defense. The Indemnifying If any such action is brought against an indemnified party, the indemnifying Party shall have the right will be entitled to assume participate in and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense within thirty (30) days thereof to the extent that it may wish, and after the Indemnifying Party receives notice of such Third Party Claim from the Indemnified indemnifying Party to such indemnified party of the indemnifying Party, (b) declines the right ’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by providing written notice the latter in connection with the defense thereof unless the indemnifying Party has failed to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute assume the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control claim. Notwithstanding any of the defense and, foregoing to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13contrary, the Indemnifying Party shall indemnify the Indemnified Party from indemnified party will be entitled to select its own counsel 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in assume the defense of any Third action brought against it if the indemnifying Party Claim with counsel selected fails to assume such defense, the expenses of such defense to be paid by it at the Indemnified indemnifying Party. As a condition to the indemnifying Party’s expense.obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, delayed or conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld. PURCHASE AND SALE AGREEMENT 35

Defense. The Except as otherwise provided herein, an Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim defend, at the Indemnifying Party’s own cost and expense and by the Indemnifying Party’s own counsel; provided thatcounsel (which counsel shall be reasonably satisfactory to the Indemnified Party), if any Third Party Claim. If the Indemnifying Party elects to defend such Third Party Claim, the Indemnifying Party shall, within ten (a) fails to assume the defense within thirty (3010) 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 receives notice 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, (b) declines ’s interests. If any Indemnifying Party elects not to defend the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) or fails to diligently prosecute 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 shall have the right may (without prejudice to assume the control any of the defense andits rights against an Indemnifying Party), to the extent that the Indemnifying Party is found to be responsible for compromise or defend such Third Party Claim under this Section 13, 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 shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending such Third Party Claimpursuant to this Article VI. In the event that 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 and continues (1) that relates to diligently prosecute the defense 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 pursuant (without regard to any limitations otherwise applicable hereunder), (4) that releases the foregoing sentenceIndemnified Party completely and (5) that would not otherwise adversely affect the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall have the right not be entitled to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in assume the defense of any Third Party Claim with (but shall nonetheless remain liable for the fees and expenses of counsel selected incurred by it at the Indemnified party in defending such Third Party Claim as part of the “Indemnified Losses” hereunder) if the Third Party Claim is reasonably likely to result in the imposition of: (i) monetary damages in excess of 200% of the Indemnifying Party’s then remaining maximum liability hereunder or (ii) an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party’s . An Indemnified Party shall not settle or compromise any Action (to the extent such Indemnified Party is seeking indemnification in respect thereof) without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party elects to defend any Action, the Indemnified Party shall make available to the Indemnifying Party any Representatives or Information that are reasonably necessary or appropriate for such defense and such Representatives shall, when appropriate, furnish evidence, testimony and other assistance in connection with any such claim. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Parties may each participate, at its or their own expense, in the defense of such Third Party Claim; provided that if in the reasonable opinion of counsel to the Indemnified Party, there exists an actual or potential conflict of interest or differing defenses between the Indemnifying Party and the Indemnified Party with respect to such Third Party Claim, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required (and such amounts shall be deemed “Indemnifiable Losses” hereunder).

Defense. The Except as otherwise provided herein, the Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If the Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for and compromise of such Third Party Claim under this Section 13insofar as it relates to the Indemnified Party. In such an event, the Indemnifying Party shall indemnify pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending such Third Party Claim. In the event provided that the Indemnifying Party assumes shall not be liable for the defense 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 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 by the party settling or compromising such claim and continues the settlement or compromise includes a complete release of the other party or parties hereto) over the objection of the other, provided, however, that consent to diligently prosecute settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim pursuant to the foregoing sentence, Claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party Claimdefend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The Indemnifying Party shall have the right to assume and control the defense If any of the Third Party Claim at indemnified parties is made or threatened ------- to be made a defendant in or party to any action or proceeding, judicial or administrative, instituted by any third party for the Indemnifying Party’s expense and by liability under which or the Indemnifying Party’s own counselcosts 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 indemnified party or parties shall give prompt notice thereof to the indemnifying party; provided that-------- 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, if the Indemnifying Party (a) fails at its own expense, to assume the defense within thirty of any such claim or any litigation to which this Section 10(d) may be applicable, by counsel reasonably satisfactory to the 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 (30) days after which expense shall not be recoverable from the Indemnifying Party receives notice 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 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 Third Party defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim from without the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control consent of the defense andindemnifying party. The indemnifying party, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any Third Party such claim or litigation, shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of a full and complete release from all liability in respect to such claim or litigation. If the Indemnification Claim with counsel selected by it at arises under Section 10(b)(iii), the Indemnified Party’s expenseindemnifying party shall defend the third party claim in the name of the indemnifying party and pay any amounts to be indemnified under such section directly to the claiming party.

Defense. The Indemnifying Party shall have the right If within 10 calendar days after an Indemnitee provides ------- Notice to assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such any Third Party Claim, and/or (d) fails the Indemnitee receives Notice from the Indemnifying Party that such Indemnifying Party has elected to diligently prosecute assume the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to will not be responsible liable for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses legal expenses subsequently incurred by the Indemnified Party Indemnitee in defending such Third Party Claim. In the event that the Indemnifying Party assumes connection with the defense of a Third Party Claim and continues thereof. The Indemnitee shall be entitled to diligently prosecute participate in the defense of such Third Party Claim pursuant and to employ counsel for such purpose at the foregoing sentencesole cost and expense of Indemnitee. Without the prior written consent of the Indemnitee, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense will not enter into any settlement of any Third Party Claim with counsel selected which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder, or which would impose any injunctive or other equitable remedy on the Indemnitee. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnitee) and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give Notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 10 calendar days after its receipt of such Notice, the Indemnitee may continue to contest or defend such Third Party Claim and, in such event, the maximum liability of the Indemnifying Party to such Third Party Claim will be the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by it at the Indemnified Party’s expenseIndemnitee up to the date of such notice.

Defense. The Except as otherwise provided herein, in the case of any claim ------- asserted by a Person that is not a party to this Agreement (a "Third Party ----------- Claim"), an Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such ----- Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If an Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute 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 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of such Third Party Claim. In such an event, the event 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, the Indemnifying Party shall not have the right to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim over which the Indemnifying Party seeks to 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 assumes the defense of a Third failed or is failing to vigorously prosecute or defend. In any event, except as otherwise provided herein, any applicable Indemnified Party Claim and continues any Indemnifying Party that has any liability with respect to diligently prosecute such claim may each participate, at its own expense, in the defense of such Third Party Claim pursuant to without, in the foregoing sentencecase of such Indemnified Party, the Indemnifying Party shall have the any right to control the defense of the Third such defense. If an Indemnifying Party Claimchooses to defend any claim, provided that the Indemnified Party shall have make available to such 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 right to participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The If a Third-Party Claim is made against the Indemnified Party, then the Indemnifying Party shall have the right be entitled to assume and control participate in the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatthereof and, if the Indemnifying Party (a) fails so chooses, to assume the defense within thirty (30) days after thereof with counsel selected by the Indemnifying Party receives notice of such Third Party Claim from and reasonably satisfactory to the Indemnified Party, (b) declines . If the right Indemnifying Party so elects to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third a Third-Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify not be liable to the Indemnified Party from for the reasonable fees and against any Losses expenses of counsel subsequently incurred by the Indemnified Party in defending such Third Party Claim. In the event that the Indemnifying Party assumes connection with the defense of a Third Party Claim and continues thereof; provided, however, that (i) prior to diligently prosecute assuming the defense of such Third Third-Party Claim pursuant to the foregoing sentenceClaim, the Indemnifying Party shall have provide to the right Indemnified Party an undertaking stating that such Indemnifying Party is able to control 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 Third 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, provided that then 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, however, that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to 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 mutually convenient basis to provide additional information and explanation of any Third 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 shall (upon further written notice) have the right to defend and, subject to Section 8.05(c), compromise or settle of such Third-Party Claim or consent to the entry of judgment with counsel selected by it respect to such Third-Party Claim, in each case at the Indemnified cost and expense of the Indemnifying Party’s expense.

Defense. The Except as otherwise provided in this Agreement, the Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided thatcounsel (which counsel shall be reasonably satisfactory to the Seller Indemnified Party or Buyer Indemnified Party, if as the case may be), any Third Party Claim. If the Indemnifying Party (a) fails elects to assume the defense compromise or defend such Third Party Claim, it shall, within thirty (30) days after the Indemnifying Party receives receiving notice of such the Third Party Claim from the Indemnified Party, (bten (10) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify 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, and/or (d) or fails to diligently prosecute 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, then (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 connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the right to assume the control written advice of the defense andits counsel, to the extent that (x) there is a conflict of interest between the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 conduct of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant or (y) there are specific defenses or claims available to the foregoing sentence, Indemnified Party which are different from or additional to those available to the Indemnifying Party shall have and which could be materially adverse to the right to control the defense of the Third Party ClaimIndemnifying Party, provided that then the Indemnified Party shall have the right to participate in the defense of any 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 selected by it at of the Indemnifying Party and one counsel to the Indemnified Party’s . 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 without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided in this Agreement, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements.

Defense. The If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall have the right be entitled to assume and control participate in the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatthereof and, if the Indemnifying Party (a) fails so chooses, to assume the defense within thirty (30) days after thereof with counsel selected by the Indemnifying Party receives notice of such Third Party Claim from and reasonably satisfactory to the Indemnified Party, (b) declines . The Indemnifying Party shall be liable for the right reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense by providing written notice thereof of a Third Party Claim, then the Indemnifying Party shall not be liable to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party Claimin connection with the defense thereof; provided, and/or however, that (di) fails prior to diligently prosecute assuming the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify provide to the Indemnified Party from an undertaking stating that such Indemnifying Party is able to and against any Losses incurred by will assume the Indemnified Party in defending such Third Party Claim. In the event that payment of all defense fees and costs and (ii) the Indemnifying Party assumes the defense Party’s assumption of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to shall not signify any agreement, obligation or commitment on the foregoing sentence, part of the Indemnifying Party shall have the right to control the defense assume or pay any amount awarded to a claimant in respect of the such Third Party Claim. If the Indemnifying Party assumes such defense, provided that then the Indemnified Party shall have the right to participate in the defense of 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 defense. If the Indemnifying Party chooses to 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 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, chooses not to assume defense of a Third Party Claim with counsel selected by it at or fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party’s expenseParty shall (upon further notice) have the right to defend, compromise or settle of such Third Party Claim or consent to the entry of judgment with respect to such Third Party Claim.

Defense. The Indemnifying Party shall have the right to assume may undertake and control the defense of the Third Party Claim at the Indemnifying Party’s expense and Claim, by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense 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 thereof representatives reasonably acceptable to the Indemnified Party, if (ci) disputes its responsibility the Indemnified Party, in the case it is any of the Buyer Indemnified Parties, determines that the Losses alleged to indemnify be subject to indemnification under this Article 8 would not be recoverable, in whole or predominately, under the RWI Policy and (ii) the Indemnifying Party admits in written notice to the Indemnified Party for that it has an indemnification obligation hereunder with respect to such Third Party Claim, and/or in which case such admission shall constitute the Indemnifying Party’s undertaking to pay directly all Losses incurred in connection with the Third Party Claim (d) fails giving effect to diligently prosecute the limitations set forth in this Article 8). If the Indemnifying Party undertakes the defense of such the Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party participate in defending such Third Party Claim. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party ClaimClaim at its own expense, provided that that, in such event, the Indemnifying Party shall pay the fees and expenses of such separate counsel (A) incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of the Third Party Claim or (B) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest. So long as the Indemnifying Party is defending the Third Party Claim actively and in good faith, the Indemnified Party shall have not compromise or settle, or consent to the right entry of a judgment with respect to, the Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned, or delayed). Each Party shall cooperate, and cause its Subsidiaries to participate cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information, and testimony, and attend such conferences, discovery proceedings, hearings, trials, or appeals, as may be reasonably requested in connection with counsel selected by it at the Indemnified Party’s expensedefense.

Defense. The Indemnifying Party shall have the right to assume and control direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party 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 Third Indemnified Party Claim at or, regardless of the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatterms of such settlement, if the Indemnifying Party (a) fails disputes its liability with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense within thirty (30) days after of any such claim or proceeding, the Indemnified Party may participate in such defense at its own expense. If 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently defend or if after commencing or undertaking any such defense fails to prosecute the or withdraws from such defense other than as a result of such Third Party Claima settlement, then the Indemnified Party shall have the right to assume direct, at the control Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense andor settlement of any such action or proceeding; provided, to the extent however, that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify if 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 a Third Party Claim and continues to diligently prosecute the defense of any such Third Party Claim 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 foregoing sentence, Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to control 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 Third foregoing provisions of this SECTION 10.3(b), if the Indemnifying Party Claimdisputes its liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnifying Party by final, provided that nonappealable order of a court of competent jurisdiction, the Indemnifying Party will not 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 have reimburse the right to participate Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party Claims. In connection with the defense of any Third Party Claim with counsel selected by it at Claim, each party shall make available to the Indemnified Party’s expenseparty controlling such defense any books, records, or other documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense.

Defense. The Indemnifying Party shall have (a) In connection with any claim that may give rise to indemnity under this Agreement resulting from or arising out of any claim or legal proceeding by a person other than the right Indemnitee, the Indemnitor, may, upon written notice to the Indemnitee, assume and control the defense of any such claim or legal proceeding with counsel reasonably acceptable to the Third Indemnitee (confirmation of which not to be unreasonably delayed), provided that (i) the Indemnitor may only assume control of such defense if (A) it acknowledges in writing to the Indemnitee that any damages, fines, costs or other liabilities that may be assessed against the Indemnitee in connection with such third party claim constitute Losses for which the Indemnitee shall be indemnified pursuant to this Section 6 or Section 7.2, (B) the ad damnum in such third party claim, taken together with the estimated costs of defense thereof and the claimed amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the then remaining unused portion of the Cap (as defined in Section 6.6(b)), and (C) in the case of a claim against a Buyer Indemnitee, an adverse resolution of the third party claim would not have a material adverse effect on the goodwill or reputation of the Buyer or the business, operations or conduct of the Surviving Corporation and (ii) the Indemnitor may not assume control of the defense of any third party claim involving Taxes or criminal liability or in which equitable relief is sought against the Indemnitee. If the Indemnitor does not, or is not permitted under the terms hereof to, so assume control of the defense of a third party claim, the Indemnitee shall control such defense. The party not controlling such defense (the “Non-controlling Party”) may participate in such defense at its own expense. The party controlling such defense (the “Controlling Party”) shall keep the Non-controlling Party Claim at advised of the Indemnifying Party’s expense status of such third party claim and the defense thereof and shall consider in good faith recommendations made by the Indemnifying Party’s own counsel; provided thatNon-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such third party claim (including copies of any summons, if complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the Indemnifying same) and shall otherwise cooperate with and assist the Controlling Party (a) fails to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute in the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control third party claim. The fees and expenses of the defense and, counsel to the extent that Indemnitee with respect to a third party claim shall be considered Losses for purposes of this Agreement if (i) the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute Indemnitee controls the defense of such Third Party Claim third party claim pursuant to the foregoing sentenceterms of this Section 6.5 or (ii) the Indemnitor assumes control of such defense and the Indemnitee and the Indemnitor have conflicting interests or different defenses available with respect to such third party claim. Neither the Securityholders’ Representative nor any Securityholder shall agree to any settlement of, or the Indemnifying Party shall have entry of any judgment arising from, any third party claim without the right to control the defense prior written consent of the Third Party ClaimBuyer, provided that the Indemnified Party consent of the Buyer shall have not be required if the Securityholders’ Representative agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the Buyer Indemnitees from further liability and has no other adverse effect on the Buyer. Except as provided in Section 6.5(b), the Buyer shall not agree to any settlement of, or the entry of any judgment arising from, any such third party claim without the prior written consent of the Securityholders’ Representative, which shall not be unreasonably withheld, conditioned or delayed. (b) Notwithstanding the other provisions of this Section 6.5, if a customer or supplier of the Company or CMS asserts (other than by means of a lawsuit) that a Buyer Indemnitee is liable to such third party for a monetary or other obligation which may constitute or result in Losses for which a Buyer Indemnitee may be entitled to indemnification pursuant to this Section 6 or Section 7.2, and the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (i) the Buyer shall be entitled to satisfy such obligation, up to a maximum amount of $500,000, without prior notice to or consent from the Securityholders’ Representative, (ii) the Buyer may subsequently make a claim for indemnification in accordance with the provisions of this Section 6, and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Section 6, for any such Losses for which it is entitled to indemnification pursuant to this Section 6 or Section 7.2 (subject to the right of the Securityholders’ Representative to participate in dispute the defense Buyer’s entitlement to indemnification, or the amount for which it is entitled to indemnification, under the terms of any Third Party Claim with counsel selected by it at the Indemnified Party’s expensethis Section 6).

Defense. The (i) In the case of a third party claim, the Indemnifying Party may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with 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 (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 have the right be entitled to assume and control the defense of the Third Party Claim at claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the Indemnifying Party’s expense 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 by of itself, to provide the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from basis for the Indemnified Party, ’s rights as set forth in this clause (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13y). In all cases, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have party without the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party 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 Third period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to 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 counsel selected by respect to a potential Indemnifiable Claim or the amount thereof (whether or not it at desires to defend the Indemnified Party against a third party claim), the 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 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 shall not settle 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 shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the 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 may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the 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 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 Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for 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. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the Indemnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party’s reasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be subject to the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy’s insurance rights are not lost, subject to the condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of Section 5.18.

Defense. The (i) In the case of a third party claim, the Indemnifying Party may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with 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 (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 have the right be entitled to assume and control the defense of the Third Party Claim at claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the Indemnifying Party’s expense 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 by of itself, to provide the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from basis for the Indemnified Party, 's rights as set forth in this clause (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13y). In all cases, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have party without the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party 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 Third period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to 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 counsel selected by respect to a potential Indemnifiable Claim or the amount thereof (whether or not it at desires to defend the Indemnified Party against a third party claim), the 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 the Indemnified Party’s , 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 shall not settle 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 shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the 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 may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the 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 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 Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for 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. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the Indemnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party's reasonable request, of the status of the litigation. The Indemnified Party's choice of counsel shall be subject to the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy's insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy's insurance rights are not lost, subject to the condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of Section 5.18.

Defense. The Subject to the limitations set forth in this Section 11.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to assume the Indemnified Party within ten (10) days after the Indemnified Party has given 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 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 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 have given notice of its election to conduct and control the defense of the Third Party Claim at within such 10-day period, (B) the Indemnifying Party’s expense and Party shall fail to conduct such defense diligently, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party’s own counsel; provided thatParty to represent the Indemnified Party would present such counsel with a conflict of interest, if or (D) the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from is for injunctive, equitable or other non-monetary relief against the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume control the control defense, compromise or settlement of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13with 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 shall indemnify and the Indemnified Party from shall, and against shall cause their respective affiliates and representatives to, cooperate fully in connection with the defense or prosecution of any Losses incurred 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 defending such Third Party Claimconnection therewith. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentenceaddition, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in party controlling the defense of any Third 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 counsel selected by it at the Indemnified Party’s expenserespect thereto.

Defense. The 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 this Agreement, the Indemnifying Party shall have at its sole cost and expense and with counsel reasonably satisfactory to the right Indemnified Party may, upon written notice to the Indemnified Party, assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, any such claim or legal proceeding if (a) the Indemnifying Party acknowledges to the Indemnified Party in writing, within fifteen (a) fails to assume the defense within thirty (3015) days after the Indemnifying Party receives receipt of notice of such Third Party Claim from the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility obligations to indemnify the Indemnified Party for with respect to all elements of such Third claim, (b) the Indemnifying Party Claimprovides 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, and/or (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not, in the good faith judgment of the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party 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 prosecute 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 Third Party Claimclaim; provided, then further, that the Indemnified Party shall have may not settle such claim without the right to assume the control prior written consent of the Indemnifying Party, which consent may not be unreasonably withheld. If the Indemnified Party assumes the defense and, to of the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13claim, the Indemnifying Party shall indemnify reimburse the Indemnified Party from for the reasonable fees and against any Losses incurred expenses of counsels retained by the Indemnified Party in defending such Third Party Claim. In the event that and the Indemnifying Party assumes the defense of a Third Party Claim and continues shall be entitled to diligently prosecute participate in (but not control) the defense of such Third claim, with its counsel and at its own expense. If the Indemnifying Party Claim pursuant thereafter seeks to question the foregoing sentencemanner 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 right burden to control the defense prove by a preponderance of the Third Party Claim, provided evidence that the Indemnified Party shall have did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other in order to insure the right to participate in the proper and adequate defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseaction, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. The Except as otherwise provided herein, in the case of any claim asserted by a Person that is not a party to this Agreement (a "Third Party Claim"), an Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If an Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of such Third Party Claim. In such an event, the event that the applicable Indemnifying Party assumes or Indemnifying Parties shall pay the defense 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 any other Indemnified Party that is a Third party to such claim; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by any Person. In any event, except as otherwise provided herein, any applicable Indemnified Party Claim and continues any Indemnifying Party that has any liability with respect to diligently prosecute such claim may each participate, at its own expense, in the defense of such Third Party Claim pursuant to without, in the foregoing sentencecase of such Indemnified Party, the Indemnifying Party shall have the any right to control the defense of the Third such defense. If an Indemnifying Party Claimchooses to defend any claim, provided that the Indemnified Party shall have make available to such 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 right to participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The Indemnifying If any such action is brought against an indemnified party, the indemnifying Party shall have the right will be entitled to assume participate in and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense within thirty (30) days thereof to the extent that it may wish, and after the Indemnifying Party receives notice of such Third Party Claim from the Indemnified indemnifying Party to such indemnified party of the indemnifying Party, (b) declines the right ’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by providing written notice the latter in connection with the defense thereof unless the indemnifying Party has failed to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute assume the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control claim. Notwithstanding any of the defense and, foregoing to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13contrary, the Indemnifying Party shall indemnify the Indemnified Party from indemnified party will be entitled to select its own counsel 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in assume the defense of any Third action brought against it if the indemnifying Party Claim with counsel selected fails to assume such defense, the expenses of such defense to be paid by it at the Indemnified indemnifying Party. As a condition to the indemnifying Party’s expenseobligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, delayed or conditioned, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with PURCHASE AND SALE AGREEMENT 39 respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the consent of such indemnifying Party, which consent shall not be unreasonably withheld.

Defense. The Indemnifying Party shall have the right to assume and control the defense of the Third Party Claim at Except as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If the Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for and compromise of such Third Party Claim under this Section 13Claim. In such an event, the Indemnifying Party shall indemnify the Indemnified Party from for the fees and against any Losses incurred by disbursements of counsel to each of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in defending 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; provided, however, that consent to settlement or compromise shall not be -------- ------- unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. In 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 anything to the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Indemnified Party shall, subject to the terms and conditions of this Article X, have the right to assume the defense of such Third Party Claim; provided, however, that in the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues subsequently -------- ------- elects to diligently prosecute assume the defense of such Third Party Claim pursuant to Claim, then the foregoing sentence, provisions set forth in this paragraph (b) shall be applicable and the Indemnifying Party shall have shall, subject to the right 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 the defense of the such Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expense.

Defense. The Indemnifying Party shall have the right to assume and control direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party 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 Third Indemnified Party Claim at or, regardless of the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatterms of such settlement, if the Indemnifying Party (a) fails disputes its liability with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense within thirty (30) days after of any such claim or proceeding, the Indemnified Party may participate in such defense at its own expense. If 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently defend or, after commencing or undertaking any such defense, fails to prosecute the or withdraws from such defense other than as a result of such Third Party Claima settlement, then the Indemnified Party shall have the right to assume the control direct, through counsel of its own choosing, the defense andor settlement of any such action or proceeding; provided, to the extent however, that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify if 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 a Third Party Claim and continues to diligently prosecute the defense of any such Third Party Claim 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 foregoing sentence, Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to control 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 Third foregoing provisions of this Section 11.3(b), if the Indemnifying Party Claimdisputes its liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnifying Party by final, provided that nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not 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 have reimburse the right to participate Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party Claims. In connection with the defense of any Third Party Claim with counsel selected by it at Claim, each party shall make available to the Indemnified Party’s expenseparty controlling such defense any books, records or other documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense; provided, however, that appropriate arrangements are made to safeguard the confidentiality of such materials.

Defense. Subject to the remaining provisions hereof, the Indemnifying Party may, upon receipt of a Claim Notice relating to a Third Party Claim and at its expense, defend such claim in its own name or, if necessary, in the name of the Claiming Party. The Claiming Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested of the Claiming Party, and the Claiming Party shall have the right, at its expense, to participate in but not control the defense thereof. The Indemnifying Party shall have the right to assume settle and control compromise any such claim with respect to which it controls the defense only with the consent of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from the Indemnified Claiming Party, (b) declines which consent shall not be unreasonably withheld. If the right to assume the defense by providing written notice thereof proceeding involves a matter solely of concern to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Claiming Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, in addition to the extent that the Indemnifying Party is found to be responsible claim for such Third Party Claim which indemnification under this Section 13Article X is being sought, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Claiming Party shall have the right to control the defense and settlement of such additional claim in its own discretion and with its own counsel. If a firm written offer is made to settle any such Third Party Claim which offer includes a complete release of the Claiming Party and its affiliates from any further liability in respect thereof and the Indemnifying Party proposes to accept such settlement and agrees in writing to indemnify the Claiming Party for all Losses related thereto and the Claiming Party refuses to consent to such settlement, then: (i) the Indemnifying Party shall be excused from, and the Claiming Party shall be solely responsible for, all further defense of such Third Party Claim, provided that ; (ii) the Indemnified maximum liability of the Indemnifying Party shall have the right relating to participate in the defense of any such Third Party Claim with counsel selected shall be the amount of the proposed settlement if the amount thereafter recovered from the Claiming Party on such Third Party Claim is greater than the amount of the proposed settlement; and (iii) the Claiming Party shall pay all attorneys' fees and legal costs and expenses incurred after the rejection of such settlement by it at the Indemnified Claiming Party’s expense, but if the amount thereafter recovered by such third party from the Claiming Party is less than the amount of the proposed settlement, the Claiming Party shall be reimbursed by the Indemnifying Party for such attorneys' fees and legal costs and expenses up to a maximum amount equal to the difference between the amount recovered by such third party and the amount of the proposed settlement.

Defense. The If any claim, demand or liability is asserted by any third party against any Indemnified Party (a "Third-Party Claim"), the Indemnified Party will (upon notice of said claim or demand) promptly notify the Indemnifying Party, and the Indemnifying Party shall have defend and/or settle any actions or proceedings brought against the right to assume and control the defense Indemnified Party in respect of the Third Party Claim at the Indemnifying Party’s expense and matters embraced by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense 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 thereof indemnity with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not promptly defend or settle any such claims, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume conduct and control any defense or settlement, at the control expense of the defense andIndemnifying Party. Except as provided by the preceding sentence, to no claim will be settled or compromised without the extent that the Indemnifying Party is found prior written consent of each party to be responsible for affected by such Third Party Claim under this Section 13settlement or compromise, the Indemnifying Party which consent shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending such Third Party Claimnot be unreasonably withheld. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the The Indemnified Party shall at all times also have the right to participate fully in the defense at its own expense; provided, however, that the Indemnifying Party shall pay the legal fees of one counsel for the Indemnified Party if the Third-Party Claim is made both against the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised by counsel that there would be a conflict of interest in having the same counsel represent both the Indemnified Party and the Indemnifying Party. The parties will cooperate in the defense of all Third-Party Claims that may give rise to Indemnifiable Claims hereunder. In connection with the defense of any Third Party Claim with counsel selected by it at claim, each party will make available to the Indemnified Party’s expenseparty controlling such defense any books, records or other documents within its control that are reasonably requested in the course of such defense.

Defense. The Except as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If the Indemnifying Party shall have the right elects to assume and control the defense 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’s expense and by , in the Indemnifying Party’s own counsel; provided thatcompromise of, if the Indemnifying Party (a) fails to assume the or defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from the Indemnified Partyagainst, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, and/or (d) or fails to diligently prosecute 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of such Third Party Claim. In the event that such an event, the Indemnifying Party assumes shall pay the defense 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 without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to -------- ------- settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and continues to diligently prosecute the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim pursuant to the foregoing sentence, Claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party Claimdefend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The Indemnifying Party shall have the right to assume and control the defense of the If a Third Party Claim at is made against an indemnified party, the Indemnifying Party’s expense and by indemnifying party will be entitled to participate in the Indemnifying Party’s own counsel; provided thatdefense thereof and, if the Indemnifying Party (a) fails it so chooses, to assume the defense within thirty (30) days after thereof with counsel selected by the Indemnifying Party receives notice of such Third Party Claim from indemnifying party and reasonably satisfactory to the Indemnified Party, (b) declines indemnified party. Should the right indemnifying party so elect to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues Claim, the indemnifying party will not be liable to diligently prosecute the indemnified party for legal expenses subsequently incurred by the indemnified party in connection with the defense of thereof. If the indemnifying party assumes such Third Party Claim pursuant to the foregoing sentencedefense, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party 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 the indemnified party's counsel determines that the indemnified party has or may have defenses to the Third Party Claim apart from or conflicting with the defenses of the indemnifying party, then the indemnified party shall be entitled to retain its own separate counsel and the indemnifying party shall be liable for legal expenses incurred by the indemnified party in the defense of such Third Party Claim. If the indemnifying party chooses to defend any Third Party Claim, all 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, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld). If the indemnifying party shall have assumed the defense of a Third Party Claim, the indemnifying party shall not settle such Third Party Claim without the indemnified party's prior written consent (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, if there is a reasonable probability that the indemnifying party will not be able to satisfy its indemnification obligations under this Section 7, the indemnified party will have the right to defend and, after reasonable consultation with counsel selected by it at the Indemnified Party’s expenseindemnifying party, to compromise or settle the Third Party Claim.

Defense. The If any Action is brought against an Indemnified Party, the Indemnifying Party shall have the right will be entitled to participate in and to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and control after notice from the Indemnifying Party to such Indemnified Party of the Indemnifying Party’s election to assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the Indemnifying Party fails to assume the defense of such Action to protect the Third Indemnified Party. Notwithstanding anything to the contrary in this Subsection 10.4(b), the Indemnified Party Claim will be entitled to select its own counsel and assume the defense of any Action brought against it, at the Indemnifying Party’s expense and by if (i) the court in which such Action is pending determines that a conflict of interest exists such that the Indemnifying Party’s own counsel; provided that, counsel is prohibited by such court or otherwise unable to represent the Indemnified Party with respect to such Action or (ii) if there is one or more defenses that could be asserted by the Indemnified Party that could not be asserted by the Indemnifying Party or the Indemnifying Party’s counsel (a) fails on the Indemnified Party’s behalf). The expenses of such defense to assume the defense within thirty (30) days after be paid by the Indemnifying Party receives notice shall be limited to the expenses of one law firm in each state in which an action has been filed. As a condition to the Indemnifying Party’s obligations hereunder, the Indemnified Party will in good faith cooperate with and assist the Indemnifying Party in the prosecution or defense of such Third indemnified Action at the expense of the Indemnifying Party. No Indemnifying Party Claim from will consent to entry of any judgment or enter into any settlement with respect to an indemnified Action either: (i) without the consent of the Indemnified Party, which consent will not be unreasonably delayed, conditioned or withheld; or (bii) declines unless such judgment or settlement includes the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify claimant or plaintiff giving the Indemnified Party for an unconditional release from all liability with respect to such Third Action. No Indemnified Party Claimwill consent to entry of any judgment or enter into any settlement of any indemnified Action, and/or (d) fails to diligently prosecute the defense of such Third Party Claimwhich has been assumed by an Indemnifying Party, then without the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense consent of such Third Party Claim pursuant to the foregoing sentenceIndemnifying Party, the Indemnifying Party shall have the right to control the defense of the Third Party Claimwhich consent will not be unreasonably delayed, provided that the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseconditioned or withheld.

Defense. The Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel (which counsel shall have be reasonably satisfactory to the right Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to assume and control the defense compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, (10 days if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives states in such notice of such Third Party Claim from the Indemnified Partythat prompt action is required), (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify notify the Indemnified Party for 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, and/or (d) or fails to diligently prosecute notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (A) 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 (B) 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of such Third Party Claim. In the event that such an event, the Indemnifying Party assumes shall pay the defense 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 over the objection of 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, the Indemnifying Party may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and continues to diligently prosecute the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim pursuant to the foregoing sentence, Claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party Claimdefend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The (i) In the case of a third party claim, the Indemnifying Party may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with 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 (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 have the right be entitled to assume and control the defense of the Third Party Claim at claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the Indemnifying Party’s expense 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 by of itself, to provide the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from basis for the Indemnified Party, 's rights as set forth in this clause (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13y). In all cases, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have party without the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party 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 Third period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to 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 counsel selected by respect to a potential Indemnifiable Claim or the amount thereof (whether or not it at desires to defend the Indemnified Party against a third party claim), the 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 the Indemnified Party’s , 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 shall not settle 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 shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the 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 may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the 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 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 Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for 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. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the Indemnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party's reasonable request, of the status of the litigation. The Indemnified Party's choice of counsel shall be subject to the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy's insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy's insurance rights are not lost, subject to the condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of Section 5.18.

Defense. In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or other legal action or otherwise, a “Third-Party Claim”), the Indemnifying Party may, upon written notice to the Indemnified Party, 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 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 proceedings and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall have not consent to a settlement of or the right entry of any judgment arising from any such Third-Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to assume and control participate in (but not control) the defense of any such Third-Party Claim, with its own counsel and at its own expense; provided, however, that the Third Indemnified Party shall be entitled to settle any Third-Party Claim involving criminal penalties, civil fines or harm without the consent, but at the Indemnifying Party’s expense and by expense, of the Indemnifying Party’s own counsel; provided that, Party if the Indemnifying Party (a) fails shall unreasonably fail to do so after being requested to do so by the Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party that it will assume the defense of such Third-Party Claim within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim claim from the Indemnified Party, : (ba) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for may defend against such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Third-Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claimmanner as it may deem reasonably appropriate, provided that the Indemnified Party shall have not consent to a settlement of or the right entry of any judgment arising from such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed); and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of any Third such action, with its counsel and at its own expense. Regardless of which Party shall assume the defense of the Third-Party Claim, the Parties agree to cooperate fully with one another in connection therewith. Such cooperation shall include the providing of records and information which are relevant to such Third-Party Claim with counsel selected by and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process, in each case to the extent that the Party being requested to provide records and information or to make employees and officers available can do so without waiving any evidentiary privileges to which it at the Indemnified Party’s expenseis entitled.

Defense. The Except as otherwise provided herein, the Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided thatcounsel (which counsel shall be reasonably satisfactory to the Indemnified Party), if any Third Party Claim. If the Indemnifying Party (a) fails elects to assume the defense compromise or #297907 -35- defend such Third Party Claim, it shall, within thirty (30) days after the Indemnifying Party receives receiving notice of such the Third Party Claim from the Indemnified Party, (bten (10) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify 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, and/or (d) or fails to diligently prosecute notify the Indemnified Party of its election to do so as herein provided, or otherwise fails to pursue the defense of such Third Party ClaimClaim 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 connection therewith shall be paid by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) there is 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of such Third Party Claim. In the event that such an event, the Indemnifying Party assumes shall pay the defense reasonable fees and disbursements of a 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 Third Party Claim is monetary damages that are paid in full by the Indemnifying Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and continues to diligently prosecute the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim pursuant to the foregoing sentence, Claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party Claimdefend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The Indemnifying Party shall have the right to assume and control direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party 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 Third Indemnified Party Claim at or, regardless of the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatterms of such settlement, if the Indemnifying Party (a) fails disputes its liability with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense within thirty (30) days after of any such claim or proceed ing, the Indemnified Party may participate in such defense at its own expense. If 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently defend or, after commencing or undertaking any such defense, fails to prosecute the or withdraws from such defense other than as a result of such Third Party Claima settlement, then the Indemnified Party shall have the right to assume direct, at the control Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense andor settlement of any such action or proceeding; provided, to the extent however, that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify if 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 a Third Party Claim and continues to diligently prosecute the defense of any such Third Party Claim 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 foregoing sentence, Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to control 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 Third foregoing provisions of this Section 10.3(b), if the Indemnifying Party Claimdisputes its liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnifying Party by final, provided that nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not 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 have reimburse the right to participate Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in con nection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties 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 the defense of any Third Party Claim with counsel selected by it at Claim, each party shall make available to the Indemnified Party’s expenseparty controlling such defense any books, records or other documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense, provided appropriate arrangements are made to safeguard the confidentiality of such materials.

Defense. The Indemnifying Party shall have the right to assume and control the defense Upon receipt of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party notice under Section 11.3.1 (aNotice) fails to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13Indemnitee, the Indemnifying Party shall will have the duty to either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Claim. The Indemnifying - 41 - [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Party will promptly (and in any event not more than [*] after receipt of the Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnified Party from Indemnitee with respect to the Claim pursuant to this Article 11 (Indemnification; Insurance) and against any Losses incurred by the Indemnified Party in defending of its intention either to compromise or defend such Third Party Claim. In the event that Once the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of gives such Third Party Claim pursuant notice to the foregoing sentenceIndemnitee, (a) the Indemnifying Party shall will have the right to control the defense and settlement of the Third Party such Claim, provided that subject to this Section 11.3 (Indemnification Procedures) and (b) the Indemnified Indemnifying Party shall have is not liable to the right Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee’s reasonable expenses of investigation and cooperation. Any Indemnitee will be entitled to participate in in, but not control, the defense of any Third Party Claim with and to retain counsel selected by it of its choice for such purpose; provided that such retention will be at the Indemnified Indemnitee’s own cost and expense unless (i) the Indemnifying Party has failed to assume the defense and retain counsel in accordance with this Section 11.3.2 (Defense) (in which case the indemnified Party will control the defense at the Indemnifying Party’s cost and expense), or (ii) the interests of the Indemnitee and the Indemnifying Party with respect to such Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under any legal requirement, ethical rules, or equitable principles.

Defense. The Except as otherwise provided herein, the Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If the Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute 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 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 the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for represented by counsel selected by it. In such Third Party Claim under this Section 13an event, the Indemnifying Party shall indemnify pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending such Third Party Claim. In the event provided that the Indemnifying Party assumes shall not be liable for the defense 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 settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim and continues is monetary damages that are paid in full (subject to diligently prosecute 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 pursuant 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 foregoing sentence, Indemnified Party and the Indemnifying Party shall have the right to control may each participate, at its own expense, in the defense of the such Third Party Claim. If the Indemnifying Party chooses to defend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. Promptly after receipt by an Indemnified Party of notice of a possible action, suit, proceeding or claim referred to in Section 7.01 hereof, such Indemnified Party, if a claim in respect thereof is to be made against the Indemnifying Party under such Section, shall provide the Indemnifying Party with written particulars thereof; provided that failure to provide the Indemnifying Party with such particulars shall not relieve such Indemnifying Party from any liability which it might have on account of the indemnity provided for in this Article Seven except insofar as such failure shall prejudice such Indemnifying Party. The Indemnified Party shall also provide to the Indemnifying Party copies of all relevant documentation and, unless the Indemnifying Party assumes the defence thereof, shall keep such Indemnifying Party advised of the progress thereof and will discuss with the Indemnifying Party all significant actions proposed. An Indemnifying Party shall have the right be entitled, at its own expense, to assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party participate in (a) fails to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that it may wish, to assume) the defence of any such action, suit, proceeding or claim but such defence shall be conducted by counsel of good standing approved by the Indemnified Party, such approval not to be unreasonably withheld. Upon the Indemnifying Party is found notifying the Indemnified Party of its election so to be responsible for assume the defence and retaining such Third Party Claim under this Section 13counsel, the Indemnifying Party shall indemnify not be liable to the Indemnified Party from and against for any Losses legal or other expenses subsequently incurred by it in connection with such defence other than for reasonable costs of investigation. If such defence is assumed by the Indemnifying Party, it shall, through the course thereof, provide copies of all relevant documentation to the Indemnified Party, keep such Indemnified Party advised of the progress thereof and shall discuss with the Indemnified Party in defending all significant actions proposed. No Indemnifying Party shall enter into any settlement without the consent of the Indemnified Party, but such Third Party Claimconsent shall not be unreasonably withheld. In the event that If such defence is not assumed by the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentenceParty, the Indemnifying Party shall not be liable for any settlement made without its consent, but such consent shall not be unreasonably withheld. Notwithstanding the foregoing, an Indemnified Party shall have the right right, at the Indemnifying Party's expense, to control the defense employ counsel of its own choice in respect of the Third defence of any such action, suit, proceeding or claim if (a) the employment of such counsel has been authorized by the Indemnifying Party Claim, provided that in connection with such defence; or (b) counsel retained by the Indemnifying Party or the Indemnified Party shall have advised the Indemnified Party that there may be legal defences available to it which are different from or in addition to those available to the Indemnifying Party (in which event and to that extent, the Indemnifying Party shall not have the right to participate in assume or direct the defense defence on behalf of any Third Party Claim with counsel selected by it at the Indemnified Party’s expense) or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party; or (c) the Indemnifying Party shall not have assumed such defence and employed counsel therefor within a reasonable time after receiving notice of such action, suit, proceeding or claim.

Defense. The If a Third Party Claim is made against the Indemnified Party, the Indemnifying Party shall have the right be entitled to assume and control participate in the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatthereof and, if the Indemnifying Party (a) fails so chooses, to assume the defense within thirty (30) days after thereof with counsel selected by 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 thereof and reasonably satisfactory to the Indemnified Party, (c) disputes its responsibility . Should the Indemnifying Party so elect to indemnify assume and thereafter actively and in good faith defend the Indemnified Party for such defense of a Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify not be liable to the Indemnified Party from and against any Losses for legal expenses subsequently incurred by the Indemnified Party in defending such Third Party Claimconnection with the defense thereof. In the event that If the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentencedefense, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that then 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, however, 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 or actively and in good faith defend such Third Party Claim. If the Indemnifying Party chooses to defend any Third Party Claim, all the parties hereto 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 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 Third 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 counsel selected by it at 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 no right to challenge the Indemnified Party’s expensedefense, compromise, settlement or consent to judgment.

Defense. The (i) In the case of a third party claim, the Indemnifying Party may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, how- ever, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litiga- tion, 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 (y) the claim raises serious issues regarding the integrity or moral character of the Indemni- fied 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 have the right be entitled to assume and control the defense of the Third Party Claim at claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the Indemnifying Party’s expense 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 by of itself, to provide the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from basis for the Indemnified Party, ’s rights as set forth in this clause (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13y). In all cases, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have party without the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to In- demnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indem- nify 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 Third period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent juris- diction that it is obligated hereunder to provide such indemnification. If the Indemni- fying Party disputes its liability with counsel selected by respect to a potential Indemnifiable Claim or the amount thereof (whether or not it at desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in good faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal pro- ceeding without the prior written consent of 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 Sub- stances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle 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 shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the de- fense 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 may defend against such claim or litigation in such manner as it may deem ap- propriate, including settling such claim or litigation, after giving notice to the Indem- nifying Party, on such terms as the Indemnified Party may deem appropriate. Not- withstanding 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 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 par- ties, jointly determine who will control the defense and settlement of any such In- demnifiable Claim and how such defense and settlement will be handled, (C) xxxxxx- ate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemni- fiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the expense of the In- demnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indem- nifying Party periodically, or upon the Indemnifying Party’s reasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be subject to the consent of the Indemnifying Party, such consent not to be unreasonably with- held or delayed. The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC cur- rently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy’s insurance rights are not lost, subject to the condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of Section 5.18.

Defense. The Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall have be reasonably satisfactory to the right Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to assume and control the defense compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, (10 days if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives states in such notice of such Third Party Claim from the Indemnified Partythat prompt action is required), (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify notify the Indemnified Party for 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, and/or (d) or fails to diligently prosecute notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (A) 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 (B) 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of such Third Party Claim. In the event that such an event, the Indemnifying Party assumes shall pay the defense 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 over the objection of 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, the Indemnifying Party may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and continues to diligently prosecute the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim pursuant to the foregoing sentence, Claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party Claimdefend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The Except as otherwise provided herein, the ------- Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If the Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, the Indemnified Party 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 connection therewith. 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 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 be represented by counsel selected by it. In such an event, the control reasonable fees and disbursements of the defense and, a single counsel to the extent that Indemnified Party shall be included in the loss suffered by the Indemnified Party in respect of such Third Party Claim. Whether or not the Indemnifying Party is found to be responsible for shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim under this Section 13without the Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party 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 indemnify not be entitled to assume the Indemnified defense of any Third Party from Claim (and against any Losses shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim. In ) if the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute seeks an order, injunction or other equitable relief or relief for other than money damages against the defense 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 pursuant to the foregoing sentencecan be so separated from that for money damages, the Indemnifying Party shall have the right be entitled to control assume the defense of the Third Party Claim, provided that the Indemnified Party shall have the right portion relating to participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expensemoney damages.

Defense. The Subject to the limitations set forth in this Section 9.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right to assume 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 the Indemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (1) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party within fifteen (a) fails to assume the defense within thirty (3015) days after the Indemnified Party has given a Claim Notice thereof, (2) the Indemnifying Party receives notice 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 (4) the Third Party Claim from is for injunctive, equitable or other non-monetary relief against the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for then in each such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then case the Indemnified Party shall have the right to assume control the control defense, compromise or settlement of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it of its choice at the Indemnified Indemnifying Party’s sole cost and expense.

Defense. The If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall have the right be entitled to assume and control participate in the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatthereof and, if the Indemnifying Party (a) fails so chooses, to assume the defense within thirty (30) days after thereof with counsel selected by the Indemnifying Party receives notice of such Third Party Claim from and reasonably satisfactory to the Indemnified Party, (b) declines . The Indemnifying Party shall be liable for the right reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such a Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify not be liable to the Indemnified Party from for the reasonable fees and against any Losses expenses of counsel subsequently incurred by the Indemnified Party in defending such Third Party Claimconnection with the defense thereof. In the event that If the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentencedefense, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that then 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, however, that the Indemnifying Party shall control such defense and the Indemnified Party shall pay the expense of his or its separate counsel. If the Indemnifying Party chooses to defend any Third Party Claim with counsel selected by it at 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’s expense, 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.

Defense. The Indemnifying As soon as practicable upon the receipt of any such claim, the Parties shall confer and decide which Party 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 dispute resolution pursuant to Section 13.3 will result in failure by the Parties to meet a litigation deadline in a timely manner, then the Party that is the defendant may defend such claim, provided that the defending Party shall give written notice to the non-defending Party and shall consider comments by the non-defending Party in good faith. In any event, 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 assume defend such claims and control shall bear any cost and expenses of the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of any such Third Party Claim from the Indemnified Partyinfringement claim and shall have sole rights to any recovery, (b) declines the right to assume the defense by providing written notice thereof and if such claim is solely related to the Indemnified PartyIdenix Compound, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party Idenix shall have the right to assume the control defend such claims and shall bear any cost and expenses of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any such Third Party Claim with counsel selected by it at infringement claims and shall have sole rights to any recovery. If the Indemnified Parties agree that a claim is related to the 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 435 Compound, the 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 Third 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 expenserights or interests, including any admissions of wrongdoing, without such other Party’s written consent, not to be unreasonably withheld or delayed.

Defense. The Except as otherwise provided herein, the Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If the Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute 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 advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the 57 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for and compromise of such Third Party Claim under this Section 13Claim. In such an event, the Indemnifying Party shall indemnify the Indemnified Party from for the fees and against any Losses incurred by disbursements of counsel to each of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in defending 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; PROVIDED, HOWEVER, that consent to settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. In 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 anything to the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Indemnified Party shall, subject to the terms and conditions of this Article X, have the right to assume the defense of such Third Party Claim; PROVIDED, HOWEVER, that in the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues subsequently elects to diligently prosecute assume the defense of such Third Party Claim pursuant to Claim, then the foregoing sentence, provisions set forth in this paragraph (b) shall be applicable and the Indemnifying Party shall have shall, subject to the right 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 the defense of the such Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expense.

Defense. The Indemnifying Party shall have the right to assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party (a) fails to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right and obligation to assume defend against, negotiate, settle or otherwise deal with any Third-Party Claim in good faith but otherwise in such manner as the control Indemnified Party deems appropriate and to be represented by counsel of its own 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 defense andIndemnifying Party (or, to in the extent case of indemnification under Section 7.1(b), the Company Stockholder Representative), which consent shall not be unreasonably withheld, so long as the Indemnified Party is contesting or defending the same with reasonable diligence and in good faith; provided, however, that the Indemnifying Party is found may participate in any proceeding with counsel of its choice and at its expense. In the event the Indemnified Party fails to be responsible for defend against, negotiate, settle or otherwise deal with such Third Party Claim under as provided above in this Section 137.3(b), 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, then the Indemnifying Party shall have the right to control the defense of defend against, negotiate, settle or otherwise deal with the Third Party ClaimClaim in good faith and otherwise in such manner as the Indemnifying Party deems appropriate; provided, provided however, that the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim (A) in the case of a settlement, unless the settlement includes, as an unconditional term thereof, the giving by the third party of a release of the Indemnified Party shall have the right to participate from all liability in the defense respect of any Third such Third-Party Claim with counsel selected by it at (other than pursuant to the terms of the settlement), (B) if the judgment or settlement involves any injunctive or other equitable relief, without the prior written consent of the Indemnified Party’s expense, and (C) if the judgment or settlement with respect to an Indemnified Party involves any amount in excess of the indemnification obtained by the Indemnified Party hereunder, without the prior written consent of the Indemnified Party.

Defense. The Indemnifying Unless the Parties otherwise agree in writing, each Party shall have the right first right, but not the obligation, subject to assume any intervening rights of the other Party under applicable Law, to defend and control the defense of the any Third Party Claim Infringement Action that names such Party as a defendant, using counsel of its own choice, at the Indemnifying Party’s expense its sole cost and by the Indemnifying Party’s own counselexpense; provided thatprovided, however, that if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such a Third Party Claim from Infringement Action is […***…], then […***…] shall have the Indemnified Partyfirst right, (b) declines but not the right obligation, to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute defend and control the defense of such Third Party ClaimInfringement Action, then 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 that the Indemnified controlling Party shall retain the right to control such Third Party Infringement Action. Without limitation of the foregoing, 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 reasonably required. If the controlling Party 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 assume the control of the defense andright, […***…], to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from conduct 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 a Third Party Claim and continues to diligently prosecute control the defense of such Third Party Claim pursuant Infringement Action using counsel reasonably acceptable to the foregoing sentence, the Indemnifying other Party at its sole cost and expense. Each Party shall have keep the right 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 control the defense of extent such other Party is participating in the Third Party ClaimInfringement Action, provided that the Indemnified Party shall have the right reasonable opportunity to participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseclaims.

Defense. At the request of the Indemnified Party, the Indemnifying Party shall promptly assume the costs of defense of an Indemnifiable Claim. The Indemnifying Party shall have retain experienced counsel reasonably satisfactory to the right to assume Indemnified Party and thereafter shall control the defense of the Third Party Claim at claim. Notwithstanding the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatforegoing, if the Indemnifying Party (a) fails to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to retain counsel of its choice and control the defense of the Indemnifiable Claim under any of the following circumstances: (i) The Indemnifying Party fails to assume the control defense of an Indemnifiable Claim within five days after receiving written notice of the existence of the claim; or (ii) The Indemnifying Party agrees to assume the defense andof an Indemnifiable Claim but either reserves its rights to challenge, or does not upon request acknowledge in writing, its obligation to indemnify the party seeking indemnity with respect to the extent that Indemnifiable Claim; or (iii) The persons against whom the Indemnifiable Claim shall have been brought, asserted or threatened (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party and the Indemnified Party is found advised by counsel that there may be one or more legal defenses available to be responsible for such Third the Indemnified Party Claim under this Section 13, that are different from or additional to those available to the Indemnifying Party. If the Indemnifying Party shall indemnify does not assume such defense or 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have has the right to control the defense of the Third Party Indemnifiable Claim, provided that the Indemnified Party may compromise or settle the Indemnifiable Claim on behalf of and for the account and risk of the Indemnifying Party, who shall have be bound by the result. In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. The parties shall cooperate in the defense of all third party claims which may give rise to Indemnifiable Claims hereunder. In connection with the defense of any Third Party Claim with counsel selected by it at claim, each party shall make available to the Indemnified Party’s expenseparty controlling such defense, any books, records or other documents within its control that are reasonably requested in the course of such defense.

Defense. The If any Action that might reasonably be expected to result in an Indemnifiable Claim is asserted or threatened by a third party against any Indemnified Party, the Indemnifying Party shall have the right may elect to assume and control the defense of thereof with experienced counsel reasonably satisfactory to the Third Party Claim at Indemnified Party. Notwithstanding the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatforegoing, if the Indemnifying Party Party, within fifteen (a) fails to assume the defense within thirty (3015) days after receipt of a notice of such Action fails to give written notice to the Indemnified Party that the Indemnifying Party receives notice of such Third Party Claim from the Indemnified Party, (b) declines the right to assume shall undertake the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) or thereafter fails to diligently prosecute the defense of timely assume such Third Party Claimdefense, then the Indemnified Party shall have the right to assume defend, compromise or settle the control Action for the account of the defense and, to the extent that Indemnifying Party. An assertion by the Indemnifying Party is found of a reservation of rights with respect to be responsible for such Third Party Claim under this Section 13Action shall not constitute a failure to give written notice that it shall undertake such defense. If, after 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control has undertaken the defense of the Third Action, the Indemnified Party Claimreasonably believes (and gives notice thereof to the Indemnifying Party) that an Indemnifiable Claim may materially adversely affect the business or operations of the Indemnified Party, provided that then the Indemnified Party shall have the right to participate in the defense of any Third the Action at its own expense, subject to the reasonable direction of the other party. Each of the Indemnifying Party Claim with counsel selected by it at and the Indemnified Party’s expenseParty shall give all reasonable assistance to the other party in connection therewith. In any case, the Indemnified Party shall, subject to Section 10.10, make available to the Indemnifying Party and its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such Action or such other matter as to which the Indemnified Party is or was required to give notice. The party having control of the defense of an Action shall notify the other party of every proposal, oral or written, for settlement, which it receives or makes.

Defense. The Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall have be reasonably satis- factory to the right Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to assume and control the defense compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, (10 days if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives states in such notice of such Third Party Claim from the Indemnified Partythat prompt action is required), (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify notify the Indemnified Party for 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, and/or (d) or fails to diligently prosecute notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice to any of its rights as against the Indemnifying Party), compro- mise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and ex- penses of the Indemnified Party incurred in connection there- with shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) there is 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 the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute direct the defense of such Third Party Claim pursuant to with the foregoing sentenceparticipation of the Indemnifying Party. In such an event, the Indemnifying Party shall have pay the right reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to control all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnify- ing 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 without the consent of the Indemnified Party) over the objection of the other; pro- vided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of the such Third Party Claim. If the Indemnifying Party chooses to defend any claim, provided that the Indemnified Party shall have make available to the right Indemnifying Party any per- sonnel or any books, records or other documents within its con- trol that are reasonably necessary or appropriate for such de- fense, subject to participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall have the right be entitled to assume and control participate in the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatthereof and, if the Indemnifying Party (a) fails so chooses, to assume the defense within thirty (30) days after thereof with counsel selected by 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 thereof and reasonably satisfactory to the Indemnified Party, provided that the Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim that (cx) disputes its responsibility to indemnify is asserted directly by or on behalf of a Person that is a customer or supplier of the Business, or (y) seeks an injunction or other equitable relief against the Indemnified Party. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for such any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, and/or then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (di) fails prior to diligently prosecute assuming the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify provide to the Indemnified Party from an undertaking stating that such Indemnifying Party is able to and against any Losses incurred by will assume the Indemnified Party in defending such Third Party Claim. In the event that payment of all defense fees and costs and (ii) the Indemnifying Party assumes the defense Party’s assumption of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to shall not signify any agreement, obligation or commitment on the foregoing sentence, part of the Indemnifying Party shall have the right to control the defense assume or pay any amount awarded to a claimant in respect of the such Third Party Claim. If the Indemnifying Party assumes such defense, provided that 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 liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party chooses to 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 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 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 or {W5975088.1} 33 consent to the entry of judgment with counsel selected by it respect to such Third Party Claim, in each case at the Indemnified cost and expense of the Indemnifying Party’s expense.

Defense. The (a) Promptly after the receipt by any person entitled to indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or (ii) the commencement of any action or proceeding, such party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Stock Purchase Agreement - Page 10 ------------------------ Section 5.1 and 5.2 of this Agreement (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the commencement of such action or proceeding and shall have the right to assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if permit the Indemnifying Party (a) fails to assume the defense within thirty (30) days after of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the Indemnifying Party receives notice in the conduct of such Third Party Claim from the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that action. Failure by the Indemnifying Party is found to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be responsible for such Third Party Claim under this Section 13, deemed a waiver by the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of its right to defend such Third Party Claim. In the event that action. (b) If the Indemnifying Party assumes the defense of a Third any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the obligations of the Indemnifying Party Claim as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and continues to diligently prosecute holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such Third claim or litigation provided that the Indemnifying Party Claim pursuant shall direct and control the defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the foregoing sentenceAggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If no settlement of the claim or litigation is made, the Indemnifying Party shall have promptly reimburse the right Aggrieved Party for the amount of any judgment rendered with respect to control such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the defense of the Third Aggrieved Party Claim, provided that the Indemnified Party shall have the right to participate in the defense against such claim or litigation. (d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of any Third Party Claim with counsel selected by it at the Indemnified Party’s expense.claim has been made and delivered within the one-year period following the Closing Date unless otherwise provided herein. Stock Purchase Agreement - Page 11 ------------------------

Defense. The Indemnifying Party shall have the right to assume and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if If the Indemnifying Party elects not to assume the defense, is not permitted to assume the defense pursuant to paragraph (a) ), fails to assume the defense within thirty (30) days after from receipt of a Claim Notice, does not diligently defend the Third Party Claim or the Indemnifying Party receives notice and any Indemnified Party are both parties to or subjects of such Third Legal Proceeding and a conflict of interest exists between the Indemnifying Party Claim from and such Indemnified Party which has the Indemnified Party, (b) declines potential of materially and adversely affecting the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify interests of the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute in the defense of such Third Party ClaimLegal 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 Third Party Claim and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel (such expenditures to be reimbursed promptly after submission of invoices therefor); provided, however, that the Indemnifying Party shall have the right to assume the control not, in connection with any Action or separate but substantially similar Actions arising out of the defense andsame 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 the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such Action. If the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 does assume the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any such Third Party Claim at its expense. If the Indemnifying Party does assume the defense of a Third Party Claim, the Indemnifying Party shall reasonably cooperate in providing information to and consulting with counsel selected by it at the Indemnified Party’s expenseParty about the Third Party Claim. 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 of such Third Party Claim.

Defense. The Except as otherwise provided herein, the Indemnifying ------- Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If the Indemnifying Party shall have the right elects to assume and control the defense compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, (10 days if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives states in such notice of such Third Party Claim from the Indemnified Partythat prompt action is required), (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify notify the Indemnified Party for 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, and/or (d) or fails to diligently prosecute 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 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of such Third Party Claim. In the event that such an event, the Indemnifying Party assumes shall pay the defense 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 over the objection of 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 continues to diligently prosecute such settlement includes an unconditional term releasing the Indemnified Party from all liability in respect of such Third Party Claim, the Indemnifying Party may settle such claim without the consent of the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim pursuant to the foregoing sentence, Claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party Claimdefend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The An Indemnifying Party shall will have the right to assume and control the defense and financial settlement of any Losses for which it is providing indemnification hereunder, including the selection of legal counsel, except that the Indemnifying Party must not agree to any non-financial settlement or term of settlement (including but not limited to any acknowledgement of liability or responsibility) of any Losses without the prior consent of the Third Party Claim relevant Indemnified Party(ies). The Indemnified Party(ies) will, at the Indemnifying Party’s expense sole cost and by expense, cooperate with the Indemnifying Party as reasonably requested in the defense of the Losses, including but not limited to making relevant representatives and documents available to the Indemnifying Party. Nothing herein prevents an Indemnified Party, prior to the resolution of any Losses, from retaining its own legal counsel for the purpose of assuming control of the Indemnified Party’s own counseldefense; provided thathowever, if the Indemnified Party must immediately notify the Indemnifying Party (a) fails to assume in writing of its assumption of the defense within thirty (30) days after defense, and its assumption thereof will relieve the Indemnifying Party receives notice of such Third Party Claim from the Indemnified Party, (b) declines the right to assume the any further indemnification and defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify obligations on behalf of the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute hereunder as of the defense date of such Third Party Claimnotice. Notwithstanding anything to the contrary in this Section 3.2, then the with respect to an Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentenceFederal Institution, the Indemnifying Party shall have the right to control the defense and financial settlement of Losses, including the Third Party Claimselection of legal counsel, as provided herein, except to the extent that the Indemnified Party shall have the right a third party is required by law to participate in the defense of any Third Party Claim with counsel selected by it at defend the Indemnified Party, which requirement may limit or preclude the Indemnifying Party’s expenseobligation to defend, but which shall not affect the Indemnifying Party’s obligations to indemnify and hold harmless hereunder.

Defense. The If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall have the right be entitled to assume and control participate in the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided thatand, if the Indemnifying Party (a) fails so chooses, to assume the defense 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 thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, provided that then the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of 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 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. The Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement of any Third Party Claim that does not include as an unconditional term the giving by the Person or Persons asserting such claim an unconditional release from all liability related to or associated with counsel selected by it at the Indemnified Party’s expensesuch claim (with such approval not to be unreasonably withheld).

Defense. The Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to assume the Indemnified Party within ten (10) days after the Indemnified Party has given a 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 may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim at within such 15 day period, (B) the Indemnifying Party’s expense 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’s own counsel; provided thatParty to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, if or (D) the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from is for injunctive, equitable or other non-monetary relief against the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for then in each such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then case the Indemnified Party shall have the right to assume control the control defense, compromise or settlement of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13with 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 shall indemnify and the Indemnified Party from shall, and against any Losses incurred 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 defending such Third Party Claimconnection therewith. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentenceaddition, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in party controlling the defense of any Third 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 counsel selected by it at the Indemnified Party’s expenserespect thereto.

Defense. If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense of the Third Party Claim, and if the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right, at its sole expense in each instance, to participate in the defense of the 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 will be fully indemnified hereunder by the Indemnifying Party. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense of the Third Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) provision to the Indemnifying Party of records that are reasonably relevant to the Third Party Claim and the provision of access to employees on a mutually convenient basis to provide additional information and explanation of any material provided. The Indemnifying Party shall have the right be entitled to assume and control the defense of the a Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, only if (i) the Indemnifying Party (a) fails provides written notice to the Indemnified Party setting forth an election to so assume the defense within thirty (30) days after of receiving the Indemnification Notice relating to a Third Party Claim and an acknowledgment of its obligations to indemnify the Indemnifying Party receives notice under this Agreement in respect of such Third Party Claim from the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or (dii) fails to diligently prosecute 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 such 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 right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control undertake the defense of the Third Party Claim, ; provided that the Indemnified Party shall have the right not settle or compromise, or enter into any agreement to participate in the defense of settle or compromise, any Third Party Claim with counsel selected by it at without the Indemnified Party’s expenseprior written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed).

Defense. The Indemnifying Party shall have the right to assume may undertake and control the defense of the Third Party Claim at the Indemnifying Party’s expense and Claim, by the Indemnifying Party’s own counsel; provided thatrepresentatives chosen by it, if the Indemnifying Party (a) fails to assume the defense 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 thereof admits that it has an indemnification obligation hereunder with respect to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for such Third Party Claim, and/or in which case such assumption shall constitute the Indemnifying Party’s undertaking to pay directly all costs, expenses, damages, judgments, awards, penalties, assessments, and other Liabilities incurred in connection with the Third Party Claim (d) fails giving effect to diligently prosecute the limitations set forth in this Article 8). If the Indemnifying Party undertakes the defense of such the Third Party Claim, then the Indemnified Party shall have the right to assume the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party participate in defending such Third Party Claim. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party ClaimClaim at its own expense, provided that that, in such event, the Indemnifying Party shall pay the fees and expenses of such separate counsel (i) incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of the Third Party Claim or (ii) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest. So long as the Indemnifying Party is defending the Third Party Claim actively and in good faith, the Indemnified Party shall have not compromise or settle, or consent to the right entry of a judgment with respect to, the Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). Each Party shall cooperate, and cause its Affiliates to participate cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information, and testimony, and attend such conferences, discovery proceedings, hearings, trials, or appeals, as may be reasonably requested in connection with counsel selected by it at the Indemnified Party’s expensedefense.

Defense. The Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall have be reasonably satisfactory to the right Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to assume and control the defense compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, (10 days if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives states in such notice of such Third Party Claim from the Indemnified Partythat prompt action is required), (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify notify the Indemnified Party for 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, and/or (d) or fails to diligently prosecute 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 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 the control of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, 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 a Third Party Claim and continues to diligently prosecute direct the defense of such Third Party Claim pursuant to with the foregoing sentenceparticipation of the Indemnifying Party. In such an event, the Indemnifying Party shall have pay the right reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to control 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 without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of the such Third Party Claim. If the Indemnifying Party chooses to defend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The Except as otherwise provided herein, the Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If the Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for and compromise of such Third Party Claim under this Section 13Claim. In such an event, the Indemnifying Party shall indemnify the Indemnified Party from for the fees and against any Losses incurred by disbursements of counsel to each of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim, (unless the sole relief payable to a third party in defending 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; provided, however, that consent to settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. In 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 anything to the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Indemnified Party shall, subject to the terms and conditions of this Article IX, have the right to assume the defense of such Third Party Claim; provided, however, that in the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues subsequently elects to diligently prosecute assume the defense of such Third Party Claim pursuant to Claim, then the foregoing sentence, provisions set forth in this paragraph (b) shall be applicable and the Indemnifying Party shall have shall, subject to the right 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 the defense of the such Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expense.

Defense. The Subject to the limitations set forth in this Section 9.6, the Indemnifying Party shall will have the right to assume elect to conduct and control the defense, compromise or settlement of any Third Party Claim, at its sole cost and expense and with counsel of its choice reasonably acceptable to the Indemnified Party, if the Indemnifying Party (i) has acknowledged in writing its indemnification obligations hereunder without qualification or reservation of rights 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 Losses resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, the Indemnified Party will have the right to conduct and control the defense, compromise or settlement of any Third Party Claim with counsel of its choice and at the Indemnifying Party’s sole cost and expense if: (A) the Indemnifying Party will not have acknowledged in writing its indemnification obligations hereunder and given notice of its election to conduct and control the defense of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, if the Indemnifying Party within fifteen (a) fails to assume the defense within thirty (3015) days after the Indemnifying Party’s receipt of a Claim Notice; (B) the Indemnifying Party receives notice fails to conduct such defense diligently and in good faith; (C) the Indemnified Party reasonably determines that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest; (D) the Third Party Claim from the Indemnified Partyseeks injunctive, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify equitable or other non-monetary relief against the Indemnified Party for such Third Party Claim, and/or (d) fails to diligently prosecute the defense or monetary damages in excess of such Third Party Claim, then the Indemnified Party shall have the right to assume the control 125% of the defense and, to Cap; or (E) the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against relates to or otherwise arises in connection with any Losses incurred by the Indemnified Party in defending such Third Party Claim. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentence, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it at the Indemnified Party’s expensecriminal or regulatory proceeding.

Defense. The Except as otherwise provided herein, the Indemnifying Party shall have the right may elect to assume and control the defense of the Third Party Claim compromise or defend, at the such Indemnifying Party’s 's own expense and by the such Indemnifying Party’s 's own counsel; provided that, if the Indemnifying Party counsel (a) fails to assume the defense 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 thereof which counsel shall be reasonably satisfactory to the Indemnified Party), (c) disputes its responsibility any Third Party Claim. If the Indemnifying Party elects to indemnify the Indemnified Party for compromise or defend such Third Party Claim, and/or (d) 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 diligently prosecute 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 reasonable 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 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 36 42 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for and compromise of such Third Party Claim under this Section 13insofar as it relates to the Indemnified Party. In such an event, the Indemnifying Party shall indemnify pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending such Third Party Claim. In the event provided that the Indemnifying Party assumes shall not be liable for the defense 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 settle or compromise any Claim (except that the Indemnifying Party may settle or compromise a Claim if the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such Claim and continues the settlement or compromise includes a complete release of the other party or parties hereto) over the objection of the other, provided, however, that consent to diligently prosecute settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim pursuant to the foregoing sentence, Claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party defend any Claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.

Defense. The Subject to the limitations set forth in this Section 7.5(b), in the event of a Third Party Claim, the Indemnifying Party shall have the right (exercisable by written notice to assume the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the 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 may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim at within such 15 day period, (B) the Indemnifying Party’s expense 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’s own counsel; provided thatParty to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, if or (D) the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives notice of such Third Party Claim from is for injunctive, equitable or other non-monetary relief against the Indemnified Party, (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify the Indemnified Party for then in each such Third Party Claim, and/or (d) fails to diligently prosecute the defense of such Third Party Claim, then case the Indemnified Party shall have the right to assume control the control defense, compromise or settlement of the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13with 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 shall indemnify and the Indemnified Party from shall, and against any Losses incurred 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 defending such Third Party Claimconnection therewith. In the event that the Indemnifying Party assumes the defense of a Third Party Claim and continues to diligently prosecute the defense of such Third Party Claim pursuant to the foregoing sentenceaddition, the Indemnifying Party shall have the right to control the defense of the Third Party Claim, provided that the Indemnified Party shall have the right to participate in party controlling the defense of any Third 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 counsel selected by it at the Indemnified Party’s expenserespect thereto.

Defense. The Except as otherwise provided herein, the Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall have be reasonably satisfactory to the right Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to assume and control the defense compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided that, (10 days if the Indemnifying Party (a) fails to assume the defense within thirty (30) days after the Indemnifying Party receives in good faith states in such notice of such Third Party Claim from the Indemnified Partythat prompt action is required), (b) declines the right to assume the defense by providing written notice thereof to the Indemnified Party, (c) disputes its responsibility to indemnify notify the Indemnified Party for 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, and/or (d) or fails to diligently prosecute 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 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 the control of and direct the defense and, to the extent that the Indemnifying Party is found to be responsible for such Third Party Claim under this Section 13, the Indemnifying Party shall indemnify the Indemnified Party from and against any Losses incurred by the Indemnified Party in defending of such Third Party Claim. In the event that such an event, the Indemnifying Party assumes shall pay the defense 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 and continues to diligently prosecute 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 settle such claim without the consent of the Indemnified Party) over the objection of the other. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim pursuant in which case each party shall cooperate in providing information to and consulting with the foregoing sentence, other about the claim. If the Indemnifying Party shall have the right chooses to control the defense of the Third Party Claimdefend any claim, provided that the Indemnified Party shall have make available to the right 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 participate in the defense receipt of any Third Party Claim with counsel selected by it at the Indemnified Party’s expenseappropriate confidentiality agreements.