Common use of Defense Clause in Contracts

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoing, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity applies, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the indemnitor does not assume the defense of a claim subject to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expense.

Defense. The indemnitee, promptly upon knowledge of such any claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoing, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option option, and its cost, assume the defense of any claim or litigation to which this indemnity applies, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing participating in the defense of its own interests alongside the indemnitor on a monitoring, non-controlling basis at its the indemnitee’s sole cost and expense. The indemnitor will not enter into any No settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind indemnitor shall be entered into by the indemnitee or compromise indemnitee’s rights in any way, indemnitor without the indemnitee’s prior written consent, which consent shall not may be unreasonably withheld, conditioned or delayedwithheld in the indemnitee’s sole discretion. If the indemnitor indemnifying party does not assume the defense of a claim subject to defense as provided in this Section 6.35.3(c), the indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee shall have the right to defend, compromise or settle defend the claim in such manner as it may deem appropriate, at the indemnitor’s expense; provided, however that the indemnitee shall not compromise or settle a claim for which it would seek indemnification without the indemnitor’s prior written consent.

Defense. The indemniteeIf any action is brought against an indemnified party, promptly upon knowledge the indemnifying Party will be entitled to participate in and to assume the defense thereof to the extent that it may wish, and after notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such claim, shall notify indemnified party for any legal or other expenses subsequently incurred by the indemnitor latter in writing of any claim connection with the defense thereof unless the indemnifying Party has failed to which any indemnity hereunder applies, giving reasonable details assume and diligently prosecute the defense of such claim. Notwithstanding any of the foregoingforegoing to the contrary, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity indemnified party will be reduced equitably entitled to reflect such material prejudice). The indemnitor may, at select its option own counsel and its cost, assume the defense of any claim action brought against it if the indemnifying Party fails to assume or litigation diligently prosecute such defense, the expenses of such defense to which this indemnity applies, with counsel reasonably satisfactory be paid by the indemnifying Party. As a condition to the indemnitee. The indemnitee shall indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the prosecution or defense of its own interests such indemnified claim at its sole cost and expenseno unreasonable expense to the indemnified party. The indemnitor will not No indemnifying Party shall consent to entry of any judgment or enter into any settlement of with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, either (a) without the indemnitee’s prior written consentconsent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed(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. If the indemnitor does not assume No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of a claim subject to this Section 6.3which has been assumed by an indemnifying Party, indemnitor may participate in without the consent of such defenseindemnifying Party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing of With respect to any claim Proceeding as to which any indemnity hereunder appliesIndemnitee notifies Mallinckrodt plc and Brand Pharma of the commencement thereof, giving reasonable details of such claim. Notwithstanding Mallinckrodt plc will be entitled to participate in the foregoingProceeding at its own expense and except as otherwise provided below, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices Mallinckrodt plc so wishes, it may assume the indemnitor’s ability defense thereof with counsel reasonably satisfactory to defend such claim as provided herein (in which event the indemnitee’s right Indemnitee. After notice from Mallinckrodt plc to indemnity will be reduced equitably Indemnitee of its election to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesProceeding, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor Mallinckrodt plc shall not preclude the indemnitee from continuing be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy such Proceeding other than the payment reasonable costs of money by the indemnitor, investigation or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayedas otherwise provided below. If the indemnitor does not assume the defense of a claim subject to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee Indemnitee shall have the right to defend, compromise or settle the claim employ legal counsel in such manner Proceeding, but all Expenses related thereto incurred after notice from Mallinckrodt plc of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by Mallinckrodt plc, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Mallinckrodt plc in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, or (iv) Mallinckrodt plc shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Mallinckrodt plc. Mallinckrodt plc shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Brand Pharma or Mallinckrodt plc, (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the avoidance of doubt, that Mallinckrodt plc may deem appropriateassume defense of any such proceeding described in this sentence with Indemnitee’s consent, at provided that any such consent shall not affect the indemnitor’s expenserights of Indemnitee under the foregoing provisions of this Section 6(b)).

Defense. The indemniteeIf any action is brought against an indemnified party by a Third Party with respect to a matter subject to indemnification under this Agreement, promptly upon knowledge the indemnifying Party will be entitled to participate in and to assume the defense thereof to the extent that it may wish, and after notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such claim, shall notify indemnified party for any legal or other expenses subsequently incurred by the indemnitor latter in writing of any claim connection with the defense thereof unless the indemnifying Party has failed to which any indemnity hereunder applies, giving reasonable details assume and diligently prosecute the defense of such claim. Notwithstanding any of the foregoingforegoing to the contrary, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity indemnified party will be reduced equitably entitled to reflect such material prejudice). The indemnitor may, at select its option own counsel and its cost, assume the defense of any claim action brought against it if the indemnifying Party fails to assume or litigation diligently prosecute such defense, the PURCHASE AND SALE AGREEMENT 56 expenses of such defense to which this indemnity applies, with counsel reasonably satisfactory be paid by the indemnifying Party. As a condition to the indemnitee. The indemnitee shall indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the prosecution or defense of its own interests such indemnified claim at its sole cost and expenseno unreasonable expense to the indemnified party. The indemnitor will not No indemnifying Party shall consent to entry of any judgment or enter into any settlement of with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, either (a) without the indemnitee’s prior written consentconsent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed(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. If the indemnitor does not assume No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of a claim subject to this Section 6.3which has been assumed by an indemnifying Party, indemnitor may participate in without the consent of such defenseindemnifying Party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. The indemniteePromptly after receipt by an Indemnified Person of notice of any claim or demand or the commencement of any action or proceeding with respect to which indemnification may be sought hereunder, promptly upon knowledge such Indemnified Person shall notify the Indemnitor of such claim or demand or the commencement of such action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the Indemnitor shall so elect, the Indemnitor shall assume the defense of such claim, demand, action or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall notify pay the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details fees and disbursements of such claimcounsel. Notwithstanding In the foregoingevent, however, that such Indemnified Person shall reasonably determine that having common counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the indemnitee’s failure Indemnitor shall fail to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of the claim, demand, action or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any claim such claim, demand, action or litigation to which this indemnity appliesproceeding and the Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, with counsel reasonably satisfactory to however, that the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor Indemnitor shall not preclude be required to pay the indemnitee from continuing fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single or related action or proceeding. For any claim, demand, action or proceeding the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than which the payment of money by Indemnitor shall assume, the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the indemnitor does not assume the defense of a claim subject to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee Indemnified Person shall have the right to defendparticipate therein and to retain its own counsel at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 6.4), so long as such participation shall not interfere with the Indemnitor's control of such claim, demand, action or proceeding. The Indemnitor shall not, without the prior written consent of the Indemnified Person, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder unless such settlement, compromise or settle the claim in consent shall include an unconditional release of such manner as it may deem appropriateIndemnified Person from all liability arising out of such claim, at the indemnitor’s expensedemand, action or proceeding.

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing of With respect to any third party claim or Action that could give rise to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingunder this Agreement, the indemnitee’s failure Indemnitor shall be entitled to assume the defense thereof, and after notice from the Indemnitor to the Indemnitee of its election so notify to assume the indemnitor defense thereof, the Indemnitor shall not preclude it from seeking indemnification hereunder except be liable to the extent Indemnitee under the foregoing indemnity agreement for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof. Any party which receives notice of a claim for indemnification may agree to assume the defense thereof conditional upon the final determination of its indemnification obligation, and any such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s assumption of defense shall not prejudice its right to indemnity will be reduced equitably to reflect such material prejudice)contest its indemnification obligation. The indemnitor may, at its option and its cost, assume Regardless of which Party is controlling the defense of any claim or litigation that could give rise to which indemnity under this indemnity appliesAgreement, with counsel reasonably satisfactory (i) both the Indemnitor and Indemnitee shall act in good faith and (ii) no settlement of such claim may be agreed to without the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense written consent of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consentIndemnitor, which consent shall not be unreasonably withheld, conditioned or, in the case the settlement requires actions, forbearance or delayedpayments by Indemnitee, without the consent of such Indemnitee (as to such matters) which consent shall not be unreasonably withheld. If The controlling party shall deliver, or cause to be delivered, to the indemnitor does not assume other party copies of all correspondence, pleadings, motions, briefs, appeals or other written statements relating to or submitted in connection with the defense of a claim subject to this Section 6.3, indemnitor may participate in any such defense, at its expense, on a monitoring, non-controlling basisclaim, and timely notices of any hearing or other court proceeding relating to such claim. Parties shall mutually agree regarding the indemnitee shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expenseongoing defense of Company Actions handled by insurance carriers.

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing of With respect to any claim Proceeding as to which any indemnity hereunder appliesIndemnitee notifies Mallinckrodt plc of the commencement thereof, giving reasonable details of such claim. Notwithstanding Mallinckrodt plc will be entitled to participate in the foregoingProceeding at its own expense and except as otherwise provided below, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices Mallinckrodt plc so wishes, it may assume the indemnitor’s ability defense thereof with counsel reasonably satisfactory to defend such claim as provided herein (in which event the indemnitee’s right Indemnitee. After notice from Mallinckrodt plc to indemnity will be reduced equitably Indemnitee of its election to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesProceeding, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor Mallinckrodt plc shall not preclude the indemnitee from continuing be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy such Proceeding other than the payment reasonable costs of money by the indemnitor, investigation or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayedas otherwise provided below. If the indemnitor does not assume the defense of a claim subject to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee Indemnitee shall have the right to defend, compromise or settle the claim employ legal counsel in such manner Proceeding, but all Expenses related thereto incurred after notice from Mallinckrodt plc of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by Mallinckrodt plc, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Mallinckrodt plc in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, or (iv) Mallinckrodt plc shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Mallinckrodt plc. Mallinckrodt plc shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Mallinckrodt plc, (y) as to which Indemnitee shall have made the determination provided for in clause (ii) of this Section 6(b) or (z) after a Change in Control (it being specified, for the avoidance of doubt, that Mallinckrodt plc may deem appropriateassume defense of any such Proceeding described in this sentence with Indemnitee’s consent, at provided that any such consent shall not affect the indemnitor’s expenserights of Indemnitee under the foregoing provisions of this Section 6(b)).

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing of With respect to any claim Proceeding as to which any indemnity hereunder appliesIndemnitee notifies Mallinckrodt plc and Sucampo of the commencement thereof, giving reasonable details of such claim. Notwithstanding Mallinckrodt plc will be entitled to participate in the foregoingProceeding at its own expense and except as otherwise provided below, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices Mallinckrodt plc so wishes, it may assume the indemnitor’s ability defense thereof with counsel reasonably satisfactory to defend such claim as provided herein (in which event the indemnitee’s right Indemnitee. After notice from Mallinckrodt plc to indemnity will be reduced equitably Indemnitee of its election to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesProceeding, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor Mallinckrodt plc shall not preclude the indemnitee from continuing be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy such Proceeding other than the payment reasonable costs of money by the indemnitor, investigation or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayedas otherwise provided below. If the indemnitor does not assume the defense of a claim subject to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee Indemnitee shall have the right to defend, compromise or settle the claim employ legal counsel in such manner Proceeding, but all Expenses related thereto incurred after notice from Mallinckrodt plc of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by Mallinckrodt plc, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Mallinckrodt plc in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, or (iv) Mallinckrodt plc shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Mallinckrodt plc. Mallinckrodt plc shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Mallinckrodt plc or Sucampo, (y) as to which Indemnitee shall have made the determination provided for in clause (ii) of this Section 6(b) or (z) after a Change in Control (it being specified, for the avoidance of doubt, that Mallinckrodt plc may deem appropriateassume defense of any such Proceeding described in this sentence with Indemnitee’s consent, at provided that any such consent shall not affect the indemnitor’s expenserights of Indemnitee under the foregoing provisions of this Section 6(b)).

Defense. The indemnitee, promptly upon knowledge of If any such claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingaction is brought against an indemnified Party, the indemnitee’s failure indemnifying Party will be entitled to so notify participate in and to assume the indemnitor shall not preclude it from seeking indemnification hereunder except defense thereof to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesthat it may wish, with counsel reasonably satisfactory to such indemnified Party, and after notice from the indemnitee. The indemnitee shall cooperate in indemnifying Party to such defense in all reasonable respects at the sole cost and expense indemnified Party of the indemnitor. Such action indemnifying Party’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 the indemnitor shall not preclude latter in connection with the indemnitee from continuing defense thereof unless the indemnifying Party has failed to assume the defense of such claim. Notwithstanding any of the foregoing to the contrary, the indemnified Party will be entitled to select its own interests counsel and assume the defense of any action brought against it if the indemnifying Party fails to assume such defense, the reasonable expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified Party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at its sole cost and expenseno unreasonable expense to the indemnified Party. The indemnitor will not No indemnifying Party shall consent to entry of any judgment or enter into any settlement of with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, either (a) without the indemnitee’s prior written consentconsent of the indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed(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. If the indemnitor does not assume No indemnified Party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of a claim subject to this Section 6.3which has been assumed by an indemnifying Party, indemnitor may participate in without the consent of such defenseindemnifying Party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. The indemnitee(a) If the facts pertaining to a Loss arise out of the claim of any third party, promptly upon knowledge or if there is any claim against a third party available by virtue of the circumstances of the Loss, the indemnifying party may assume the defense or the prosecution thereof by written notice to the indemnified party agreeing to indemnify and defend the indemnified party from and against all indemnifiable Losses under this Article 9 arising from such claim. (b) If the indemnifying party agrees to assume the defense and prosecution of such claim, then the indemnified party shall notify have no further obligation with respect to such claim. In any such case, the indemnitor indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying in writing any such action and to participate therein, but the fees and expenses of such counsel employed by the indemnified party shall be at the indemnified party's expense. No indemnifying party shall agree to a settlement of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoing, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity applies, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s indemnified party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. withheld in light of the indemnified party's circumstances. (c) If the indemnitor does indemnifying party shall not assume the defense and prosecution of any such claim, the indemnified party shall keep the indemnifying party reasonably informed of the progress of any proceedings relating to such claim and shall consult regularly with the indemnifying party with respect thereto and shall not agree to a settlement of such claim subject to this Section 6.3without the indemnifying party's written consent, indemnitor may participate which consent shall not be unreasonably withheld in such defenselight of the indemnifying party's circumstances. (d) All parties hereto shall cooperate in the defense or prosecution thereof and shall furnish all witnesses and testimony, at its expenserecords, on a monitoring, non-controlling basismaterials and other information, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. (e) Subject to Section 11.12, the indemnitee indemnification provisions of this Article 9 shall have be the right sole remedy with respect to defendany Losses incurred by the Protected Parties or the CS Parties, compromise except in the case of fraud or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expenseintentional misrepresentation.

Defense. The indemniteeindemnifying party shall have the right to direct, promptly upon knowledge through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the indemnified party with respect to which indemnification is sought hereunder; provided, however, that the indemnifying party shall not settle any matter without obtaining the indemnified party's prior written consent thereto if such settlement does not provide for a full release of the indemnified party on terms satisfactory to it or, regardless of the terms of such settlement, if the indemnified party disputes its liability with respect to the claim, and provided, further, that notwithstanding the foregoing, Seller as indemnifying party with respect to Section 10.2(c) hereof shall notify at its own cost and expense assume and direct the indemnitor in writing defense and settlement of any claim action or proceeding currently pending against or involving the Company relating to the Non-Annuity Business (including, but not limited to, those matters set forth in item B under Schedule 3.14) and any action or proceeding hereafter brought against or involving the Company or Buyer and relating to the Non-Annuity Business with respect to which indemnification is sought pursuant to Section 10.2(c). The indemnified party may participate in any indemnity hereunder appliessuch defense at its own expense. If the indemnifying party fails to defend or if after commencing or undertaking any such defense fails to prosecute or withdraws from such defense other than as a result of a settlement, giving reasonable details the indemnified party shall have the right to direct, at the indemnifying party's sole cost and expense, through counsel of the indemnified party's own choosing, the defense or settlement of any such claimaction or proceeding. Notwithstanding the foregoing, if the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except indemnifying party disputes its liability to the extent indemnified party and if such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (dispute is resolved in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity applies, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense favor of the indemnitor. Such action indemnifying party by final, nonappealable order of a court of competent jurisdiction, the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expense. The indemnitor indemnifying party will not enter into any settlement be required to bear the costs and expenses of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the indemnitor does not assume the indemnified party's defense of a claim subject to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee indemnified party shall have reimburse the right to defend, compromise or settle the claim indemnifying party in such manner as it may deem appropriate, at the indemnitor’s expensefull for all costs and expenses incurred in connection therewith.

Defense. The indemnitee, promptly upon knowledge of If any such claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingaction is brought against an indemnified party, the indemnitee’s failure indemnifying party will be entitled to so notify participate in and to assume the indemnitor shall not preclude it from seeking indemnification hereunder except defense thereof to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesthat it may wish, with counsel reasonably satisfactory to such indemnified party, and after such notice from the indemnitee. The indemnitee indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall cooperate in not be liable to such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action indemnified party for any legal or other expenses subsequently incurred by the indemnitor shall not preclude latter in connection with the indemnitee from continuing defense thereof unless the indemnifying party has failed to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified person. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own interests at its sole cost counsel and expenseassume the defense of any action brought against it if the indemnifying party fails to select counsel reasonably satisfactory to the indemnified party, the expenses of such defense is to be paid by the indemnifying party. The indemnitor will not No indemnifying party shall consent to entry of any judgment or enter into any settlement of with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consentconsent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayedunless 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. If the indemnitor does not assume No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of a claim subject to this Section 6.3which has been assumed by an indemnifying party, indemnitor may participate in without the consent of such defenseindemnifying party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. The indemnitee, promptly upon knowledge of If any such claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingaction is brought against an indemnified Person, the indemnitee’s failure indemnifying Party will be entitled to so notify participate in and to assume the indemnitor shall not preclude it from seeking indemnification hereunder except defense thereof to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesthat it may wish, with counsel reasonably satisfactory to such indemnified Person, and after notice from the indemnitee. The indemnitee shall cooperate in indemnifying Party to such defense in all reasonable respects at the sole cost and expense indemnified Person of the indemnitor. Such action indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified Person for any legal or other expenses subsequently incurred by the indemnitor shall not preclude latter in connection with the indemnitee from continuing defense thereof unless the indemnifying Party has failed to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified Person. Notwithstanding any of the foregoing to the contrary, the indemnified Person will be entitled to select its own interests counsel and assume the defense of any action brought against it if the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified Person, the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified Person will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at its sole cost and expenseno unreasonable expense to the indemnified Person. The indemnitor will not No indemnifying Party shall consent to entry of any judgment or enter into any settlement of with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, either (a) without the indemnitee’s prior written consentconsent of the indemnified Person, which consent shall not be unreasonably withheld, conditioned or delayed(b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Person of a release from all liability with respect to such claim. If the indemnitor does not assume No indemnified Person shall consent to entry of any judgment or enter into any settlement of any such action, the defense of a claim subject to this Section 6.3which has been assumed by an indemnifying Party, indemnitor may participate in without the consent of such defenseindemnifying Party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing In connection with any claim giving rise to indemnity hereunder arising out of any claim to which or legal proceeding by any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingperson who is not a Claimant, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except Obligor at its sole cost and expense may, upon written notice to the extent such failure materially prejudices Claimant, elect to assume the indemnitor’s ability to defend defense of any such claim as or legal proceeding. If the Obligor has so elected to assume the defense of any such claim or legal proceeding, such defense shall be conducted by counsel chosen by the Obligor, provided herein (in which event that such counsel is reasonably satisfactory to the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice)Claimant. The indemnitor may, Claimant shall be entitled to participate in (but not control) the defense of any such action with its own counsel and at its option and its cost, own expense. If the Obligor has elected to assume the defense of any claim or litigation legal proceeding as provided herein, the Claimant shall not be entitled to indemnification for legal fees and expenses relating to such claim or proceeding that are incurred by the Claimant after the time at which this indemnity applies, with counsel reasonably satisfactory to the indemniteeObligor has so elected. The indemnitee Claimant shall cooperate in such defense in all reasonable respects at not settle or compromise any indemnified liability without the sole cost and expense prior written consent of the indemnitor. Such action by the indemnitor Obligor, which shall not preclude be unreasonably withheld. In the indemnitee from continuing event that the defense of its own interests at its sole cost and expense. The indemnitor will Obligor shall so assume such defense, it shall not enter into compromise or settle any settlement of a claim that involves a remedy other than the payment of money by the indemnitorsuch claim, action, or agree to any action that would bind suit unless (i) the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s Claimant gives its prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed(ii) the terms of the compromise or settlement of such claim, action, or suit provide that the Claimant shall have no responsibility for the discharge of any settlement amount and impose or create no other obligations, liabilities or duties on the Claimant, and the compromise or settlement discharges all rights against the Claimant with respect to such claim, action, or suit. If the indemnitor does not assume The Claimant will reasonably cooperate with the defense of a claim subject any such claim, action, or suit and will provide such personnel, technical support, and access to this Section 6.3, indemnitor information as may participate be reasonably requested by the Obligor in connection with such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expense.

Defense. The indemniteeIf any such claim is brought against an indemnified party, promptly upon knowledge the indemnifying party will be entitled to participate in and to assume the defense thereof to the extent that it may wish, and after notice from the indemnifying party to such indemnified party of the indemnifying party’s election to assume the defense thereof, the indemnifying party shall not be liable to such claim, shall notify indemnified party for any legal or other expenses subsequently incurred by the indemnitor indemnified party in writing of any claim connection with the defense thereof unless the indemnifying party has failed to which any indemnity hereunder applies, giving reasonable details assume and diligently prosecute the defense of such claim. Notwithstanding any of the foregoingforegoing to the contrary, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity indemnified party will be reduced equitably entitled to reflect such material prejudice). The indemnitor may, at select its option own counsel and its cost, assume the defense of any claim or litigation action brought against it if the indemnifying party fails to which this indemnity appliesselect counsel, with counsel reasonably satisfactory the expenses of such defense to be paid by the indemnifying party. As a condition to the indemnitee. The indemnitee shall indemnifying party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying party in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the prosecution or defense of its own interests such indemnified claim at its sole cost and expenseno unreasonable expense to the indemnified party. The indemnitor will not No indemnifying party shall consent to entry of any judgment or enter into any settlement of with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, either (a) without the indemnitee’s prior written consentconsent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed(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. If the indemnitor does not assume No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of a claim subject to this Section 6.3which has been assumed by an indemnifying party, indemnitor may participate in without the consent of such defenseindemnifying party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. (a) The indemniteeindemnifying party shall be entitled to participate in the defense of the External Claim and, promptly upon knowledge if it so chooses, to assume and control the defense thereof with counsel selected by the indemnifying party and reasonably acceptable to the indemnified party (which acceptance shall not be unreasonably withheld or delayed); provided that following such assumption the indemnifying party diligently conducts the defense thereof. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof, and to employ counsel at its own expense, provided that the indemnifying party shall be liable for all reasonable fees and expenses of such claimcounsel in the circumstances set forth in Clause 15.2(b), it being understood that the indemnifying party shall notify control such defense and shall be empowered to make any settlement with respect to the indemnitor in writing External Claim that satisfies the conditions to the indemnified party's consent obligation pursuant to the last sentence of Clause 15.2(c). (b) The indemnifying party shall be liable for the reasonable fees and expenses of legal counsel employed by the indemnified party for any claim period during which the indemnifying party has not assumed the defense thereof (other than the period prior to the date on which any indemnity hereunder applies, giving reasonable details the indemnified party gives notice of such claimthe External Claim as provided above). Notwithstanding the foregoing, if (i) the indemnitee’s failure to so notify indemnifying party and the indemnitor indemnified party shall not preclude it from seeking indemnification hereunder except have mutually agreed to the extent such failure materially prejudices retention of separate counsel for the indemnitor’s ability indemnified party or (ii) the named parties (including any impleaded parties) to defend such claim as provided herein an External Claim include both the indemnifying party and the indemnified party and the indemnified party has been advised by legal counsel that there is material conflict of interest requiring or making it advisable that the indemnified party have separate legal counsel, the indemnifying party shall be liable for all reasonable fees and expenses of separate legal counsel for the indemnified party in connection with that External Claim. (in which event c) Whether or not the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume indemnifying party assumes the defense of any claim or litigation to which this indemnity appliesan External Claim, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor indemnified party shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expense. The indemnitor will not enter into admit any settlement of a claim that involves a remedy other than the payment of money by the indemnitorliability with respect to, or agree to any action that would bind the indemnitee settle, compromise or compromise indemnitee’s rights in any waydischarge, such External Claim without the indemnitee’s indemnifying party's prior written consent, consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed). If However, if settled with such consent, the indemnitor does not assume indemnifying party shall indemnify the defense indemnified party from and against any loss or liability by reason of a claim subject to this Section 6.3such settlement or judgment. The indemnifying party shall not, indemnitor may participate in such defensewithout the prior written consent of the indemnified party, at its expense, on a monitoring, non-controlling basis, and the indemnitee shall have the right to defendeffect any settlement, compromise or settle discharge of any External Claim in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement, compromise or discharge (i) provides for full settlement and complete release, without any equitable award or relief, and (ii) by its terms (or pursuant to a binding commitment of the claim indemnifying party) obligates the indemnifying party to pay the full amount of the liability in connection with such manner as it may deem appropriate, at External Claim (subject to the indemnitor’s expenseprovisions of Clause 14.5).

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing of With respect to any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingProceeding, the indemnitee’s failure Company shall be entitled to so notify participate in the indemnitor shall not preclude it from seeking indemnification hereunder except Proceeding at its own expense and, to the extent the Company so desires, it may assume or lead the defense thereof with counsel reasonably satisfactory to Indemnitee; provided, in the event that (i) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of such failure materially prejudices Proceeding, (ii) after a Change of Control (other than a Change in Control approved by a majority of the indemnitor’s ability board of directors who were directors immediately prior to defend such claim as Change in Control), the employment of counsel by Indemnitee has been approved by Independent Counsel or (iii) the Company shall not in fact have employed counsel to assume the defense of such Proceeding, Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular claim) and the reasonable and documented fees and expenses of such separate counsel shall be at the expense of the Company; provided herein (further, that the Company shall not be entitled to assume the defense in which event any Proceeding brought by or on behalf of the indemnitee’s right Company. After notice from the Company to indemnity will be reduced equitably Indemnitee of its election to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesProceeding, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor Company shall not preclude the indemnitee from continuing be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ legal counsel in such Proceeding, but all Expenses related thereto incurred after notice from the Company of its own interests assumption of the defense thereof shall be at its sole cost and Indemnitee’s expense. In any Proceeding in which the Company’s participates, Indemnitee agrees to consult with the Company and to consider in good faith the advisability and appropriateness of joint representation in the event that either the Company or other indemnitees in addition to Indemnitee require representation in connection with any Proceeding. The indemnitor will not enter into any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent Company shall not be unreasonably withheld, conditioned or delayed. If liable to indemnify Indemnitee under this Agreement with regard to any judicial award if the indemnitor does Company was not assume the defense of given a claim subject to this Section 6.3, indemnitor may participate in such defensereasonable and timely opportunity, at its expense, on a monitoringto participate in the defense of such action; provided, non-controlling basis, and that the indemnitee Company’s liability hereunder shall have not be excused if participation in the right to defend, compromise or settle Proceeding by the claim in such manner as it may deem appropriate, at the indemnitor’s expenseCompany was barred by this Agreement.

Defense. The indemnitee1.9.1 If any such action is brought against an indemnified Person for which such Person is entitled to release, promptly upon knowledge of such claimdefense, shall notify the indemnitor in writing of any claim to which any or indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingunder this Article 1, the indemnitee’s failure indemnifying party will be entitled to so notify participate in and to assume the indemnitor shall not preclude it from seeking indemnification hereunder except defense thereof to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesthat it may wish, with counsel reasonably satisfactory to such indemnified Person, and after notice from the indemnitee. The indemnitee shall cooperate in indemnifying Person to such defense in all reasonable respects at the sole cost and expense indemnified Person of the indemnitor. Such action indemnifying party’s election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified Person for any legal or other expenses subsequently incurred by the indemnitor shall not preclude latter in connection with the indemnitee from continuing defense thereof unless the indemnifying party has failed to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified Person. 1.9.2 Notwithstanding any of the foregoing to the contrary, the indemnified Person will be entitled to select its own interests counsel and assume the defense of any action brought against it if the indemnifying party fails to select counsel reasonably satisfactory to the indemnified Person, and the expenses of such defense to be paid by the indemnifying party. As a condition to the indemnifying party’s obligations hereunder, the indemnified Person will in good faith cooperate with and assist the indemnifying party in the prosecution or defense of such indemnified claim at its sole cost and expense. The indemnitor will not no unreasonable expense to the indemnified Person. 1.9.3 No indemnifying party shall consent to entry of any judgment or enter into any settlement of with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, either (i) without the indemnitee’s prior written consentconsent of the indemnified Person, which consent shall not be unreasonably withheld, conditioned or delayed(ii) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified Person of a release from all liability with respect to such claim. If the indemnitor does No indemnified Person shall consent to entry of any judgment or enter into any settlement of any such action, whether or not assume the defense of a claim subject to this Section 6.3which has been assumed by an indemnifying party, indemnitor may participate in without the consent of such defenseindemnifying party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing If a claim or action is made or brought against Licensor by reason of any claim arising out of any of the occurrences that Licensee is required, pursuant to which the preceding Sections or any indemnity hereunder appliesother provisions of this License, giving to indemnify and save Licensor harmless against and from (each an “Indemnified Claim”), then Licensee, upon written notice from Licensor, shall at Licensee’s expense defend such action or proceeding using legal counsel reasonably satisfactory to Licensee; provided, however that: (a) If Licensor decides to itself conduct the defense of an Indemnified Claim against it or to conduct any other response itself, Licensee shall reimburse Licensor for all costs and expenses (including, without limitation, reasonable details attorneys’ fees and expenses) incurred by Licensor in connection with Licensor’s defense of such claimthe Indemnified Claim against it and/or the conduct of all response actions, including, without limitation, those required by Chapter 21E and the MCP. Notwithstanding the foregoing, the indemnitee’s failure to so notify the indemnitor The settlement or compromise of any Indemnified Claim shall not preclude it from seeking indemnification hereunder except to include the extent such failure admission of guilt (or comparable plea), wrongdoing or negligence or the permitting or imposition of civil or criminal penalties or indictments, or the entering of consent decrees or orders of any kind by Licensor on behalf of the Licensee or any other action that would materially prejudices prejudice the indemnitorrights of the Licensee without the Licensee’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice)express written approval. The indemnitor may, at its option and its cost, assume Licensee shall cooperate with Licensor in the defense of any claim or litigation Indemnified Claim. This same right of self defense and the right to which this indemnity applies, with counsel reasonably satisfactory reimbursement from the Licensee shall apply to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense each of the indemnitor. Such action by Railroad(s) that has an Indemnified Claim against it. (b) If Licensor decides to have Licensee defend the indemnitor Indemnified Claim or handle the response action, Licensor shall not preclude notify Licensee of that decision in writing and the indemnitee from continuing Licensee shall bear the entire cost thereof and shall have sole control of the defense of any Indemnified Claim and all negotiations for its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim or compromise provided that involves a remedy other than the payment of money Licensor is fully indemnified by the indemnitorLicensee and provided further that the settlement or compromise shall not include the admission of guilt (or comparable plea), wrongdoing or negligence or the permitting or imposition of civil or criminal penalties or indictments, or agree to the entering of consent decrees or orders of any kind by the Licensee on behalf of Licensor or any other action that would bind materially prejudice the indemnitee or compromise indemniteerights of Licensor without Licensor’s rights express written approval. Licensor shall cooperate with the Licensee in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the indemnitor does not assume the defense of a claim subject any Indemnified Claim. If any of the Railroads wants the Licensee to defend it against an Indemnified Claim, then they must agree to this Section 6.3paragraph. If any response action due to the presence of Hazardous Materials on the Premises (or other property of Licensor which abuts the Premises), indemnitor may participate is performed by Licensee, the response action shall be performed in such defense, at its expense, on a monitoring, non-controlling basis, accordance with Chapter 21E and the indemnitee shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expenseMCP.

Defense. The indemniteeA person or entity seeking indemnification under this ARTICLE IX (the “lndemnitee”) shall give notice to the indemnifying Party (the “lndemnitor”) of a Claim or other circumstances likely to give rise to a request for indemnification, promptly upon knowledge after the Indemnitee becomes aware of such claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoing, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice)same. The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesIndemnitor, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written Indemnitee consent, which consent shall not be unreasonably withheld, conditioned or delayed. If , shall be afforded the indemnitor does not assume opportunity to undertake the defense of a claim and to settle by compromise or otherwise any Claim for which indemnification is available under this ARTICLE IX. The Indemnitor's selection of legal counsel is subject to this Section 6.3the Indemnitee's approval (which approval shall not be unreasonably withheld). If an Indemnitor so assumes the defense of any Claim, indemnitor the Indemnitee may participate in such defensedefense with legal counsel of the Indemnitee's selection and at the expense of the Indemnitee. Indemnitor may not settle any Claim against Indemnitee or otherwise consent to any final order or judgement regarding same if the settlement, at its expensefinal order or judgement includes an admission of wrongdoing in Indemnitee's or Affiliate's name unless Indemnitee or Affiliate, as applicable, consents in writing. If the Indemnitor, upon the expiration of the fifteen (15) days after receipt of notice of a Claim by the Indemnitee, has not assumed the expense of the defense thereof, the Indemnitee may thereupon undertake the defense thereof on a monitoring, non-controlling basisbehalf of, and the indemnitee shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expenserisk and expense of, the Indemnitor, with all reasonable costs and expenses of such defense to be paid by the Indemnitor.

Defense. The indemnitee, promptly upon knowledge If any Proceeding referred to in Section 10.10.1 is brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingProceeding, the indemnitee’s failure indemnifying party will, unless the claim is a Tax Claim, be entitled to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except participate in such Proceeding and, to the extent that it wishes (unless (i) the indemnifying party is also a party to such failure materially prejudices Proceeding and the indemnitor’s ability indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of its financial capacity to defend such claim as provided herein (in which event the indemnitee’s right Proceeding and provide indemnification with respect to indemnity will be reduced equitably such Proceeding), to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity applies, such Proceeding with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at indemnified party and, after notice from the sole cost and expense of indemnifying party to the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the defense indemnified party of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree election to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the indemnitor does not assume the defense of a claim subject to this Section 6.3such Proceeding, indemnitor may participate in the indemnifying party will not, as long as it diligently conducts such defense, at its expensebe liable to the indemnified party under this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on a monitoring, non-controlling basisany other claims that may be made against the indemnified party, and (B) the indemnitee shall sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnifying party will have the right no liability with respect to defend, any compromise or settle settlement of such claims effected without its consent. If notice is given to an indemnifying party of the claim commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will be bound by any determination made in such manner as it may deem appropriate, at Proceeding or any compromise or settlement effected by the indemnitor’s expenseindemnified party.

Defense. The indemniteeIf an indemnified party shall receive notice of a claim asserting Losses for which it is indemnified under this Agreement, it shall promptly upon knowledge of such claim, shall notify the indemnitor in writing indemnifying party. The failure to notify the indemnifying party shall not relieve the indemnifying party from its indemnity, unless such delay adversely, materially and incurably affects the rights of any the indemnifying party. Upon receipt of a notice of claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingfrom an indemnified party, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor indemnifying party may, at its option cost and its costexpense, participate in the defense of such action and may assume the defense of any claim or litigation to which this indemnity applies, with counsel reasonably satisfactory satisfactory, in the exercise of reasonable judgement, to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayedindemnified party. If the indemnitor does not assume indemnifying party assumes the defense of a claim subject to this Section 6.3claim, indemnitor the indemnified party may participate in such defense, the defense of the claim at its own expense, on . The indemnifying party may assume defenses of a monitoring, non-controlling basis, and claim while objecting to the indemnitee shall have liability for the right to defendLoss. The indemnifying party may settle, compromise and pay any claim of or settle to any third party. If the claim indemnified party shall reasonably conclude that its interests in such manner as action are materially different from those of the indemnifying party or that it may deem appropriatehave defenses that are different from or in addition to those available to the indemnifying party, the indemnified party, may use separate counsel (who must be reasonably acceptable to the indemnifying party) to assert such defenses and otherwise participate in the defense of such action, at the indemnitor’s expensereasonable expense of the indemnifying party. If the indemnifying party shall assume the defense with counsel satisfactory to the indemnified party, the indemnifying party shall not be liable for any legal expenses subsequently incurred by the indemnified party, unless the indemnified party shall have employed separate counsel in accordance with the preceding sentence. If the claim is one that cannot by its nature be defended solely by the indemnifying party, the indemnified party shall make available all information and assistance that the indemnifying party may reasonably request. All parties shall cooperate with each other in good faith in the resolution of any third party claims.

Defense. The indemniteeIn connection with any indemnification claim arising out of a claim or legal proceeding by a Person who is not a party to this Agreement, promptly upon knowledge an applicable Seller (or, if the claim does not result from a breach of such claim, shall notify the indemnitor a representation or warranty of a Seller contained in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingArticle IV, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor Stockholders Representative) may, at its option and its costupon written notice to Buyer, assume the defense of any such claim or litigation legal proceeding if the applicable indemnifying Sellers with respect to which such claim acknowledge (or, if the claim does not result from a breach of a representation or warranty of a Seller contained in Article IV, the Stockholders Representative acknowledges), to Buyer the Buyer Indemnitee’s right to indemnity pursuant to this indemnity applies, with counsel reasonably satisfactory Agreement for Losses incurred by the Buyer Indemnitee as a result of such claim (subject to the indemniteelimitations contained in this Agreement, including, without limitation, Section 9.4 hereof). The indemnitee shall cooperate in costs and expenses of such defense in all reasonable respects at shall be paid by Sellers from the sole cost Reserve Account, and expense of the indemnitor. Such action thereafter, Pro Rata by the indemnitor shall Sellers (or by the indemnifying Seller, if the claim results from a breach of a representation or warranty of such Seller contained in Article IV). If the indemnifying Sellers (or, if the claim does not preclude result from a breach of a representation or warranty of a Seller contained in Article IV, the indemnitee from continuing Stockholders Representative) assume the defense of any such claim or legal proceeding, such Sellers (or the Stockholders Representative, as applicable) may use counsel of their choice to prosecute such defense, subject to the approval of such counsel by Buyer, which approval shall not be unreasonably withheld or delayed. Buyer shall be entitled to participate in (but not control) the defense of any such action, with its counsel and the costs and fees of such counsel shall be at its own interests at its sole cost expense unless the named parties to the third-party claim (including any impleaded parties) include both a Seller and expensethe Buyer Indemnitee, and the Buyer Indemnitee reasonably determines based on the advice of counsel, that representation by counsel to the Seller of both the Seller and such Buyer Indemnitee may reasonably be expected to create a conflict of interest. The indemnitor will not enter into indemnifying Seller or Sellers shall be entitled to settle, compromise or consent to the entry of any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree judgment with respect to any action that would bind such claim or legal proceeding only with the indemnitee or compromise indemnitee’s rights in any way, without consent of the indemnitee’s prior written consentBuyer Indemnitee, which consent shall not be unreasonably withheld, conditioned withheld or delayed. If the indemnitor does not assume the defense of a claim subject ; provided, however, that no Buyer Indemnitee shall be obligated under any circumstance whatsoever to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee shall have the right consent to defendany settlement, compromise or settle consent if such settlement, compromise or consent (i) involves a finding or admission of wrongdoing by the Buyer Indemnitee, (ii) does not include an unconditional written release by the claimant or plaintiff of the Buyer Indemnitee from all liability in respect of such claim or (iii) imposes equitable remedies or any obligation on the Buyer Indemnitee other than solely the payment of money damages for which the Buyer Indemnitee will be indemnified hereunder; and provided, further, that the indemnifying Seller or Sellers shall pay all amounts arising out of such settlement or judgment either concurrently with the effectiveness thereof or shall obtain and deliver to such Buyer Indemnitee prior to the execution of such settlement a general release executed by the third party, which general release shall release such Buyer Indemnitee from any liability in such manner as it may deem appropriate, at the indemnitor’s expensematter.

Defense. The indemnitee, promptly upon knowledge of If any such claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingaction is brought against an indemnified party, the indemnitee’s failure indemnifying Party will be entitled to so notify participate in and to assume the indemnitor shall not preclude it from seeking indemnification hereunder except defense thereof to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesthat it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the indemnitee. The indemnitee shall cooperate in indemnified party within thirty (30) days of its receipt of written notice of such defense in all reasonable respects at action from the sole cost indemnified party, and expense after such notice from the indemnifying Party to such indemnified party of the indemnitor. Such action indemnifying Party’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 the indemnitor shall not preclude latter in connection with the indemnitee from continuing defense thereof unless the indemnifying Party has failed PURCHASE AND SALE AGREEMENT -49- to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own interests counsel and assume the defense of any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified party in connection with the defense of such action or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the indemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at its sole cost and expenseno unreasonable out of pocket expense to the indemnified party. The indemnitor will not No indemnifying Party shall consent to entry of any judgment or enter into any settlement of with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, either (a) without the indemnitee’s prior written consentconsent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed(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. If the indemnitor does not assume No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of a claim subject to this Section 6.3which has been assumed by an indemnifying Party, indemnitor may participate in without the consent of such defenseindemnifying Party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. The indemnitee, promptly upon knowledge of If any such claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoingaction is brought against an indemnified party, the indemnitee’s failure indemnifying Party will be entitled to so notify participate in and to assume the indemnitor shall not preclude it from seeking indemnification hereunder except defense thereof to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesthat it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnitee. The indemnitee shall cooperate in indemnifying Party to such defense in all reasonable respects at the sole cost and expense indemnified party of the indemnitor. Such action indemnifying Party’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 the indemnitor shall not preclude latter in connection with the indemnitee from continuing defense thereof unless the indemnifying Party has failed to assume the defense of such claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own interests counsel and assume the defense of any action brought against it if the indemnifying Party fails to assume or diligently prosecute such defense, the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at its sole cost and expenseno unreasonable expense to the indemnified party. The indemnitor will not No indemnifying Party shall consent to entry of any judgment or enter into any settlement of with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, either (a) without the indemnitee’s prior written consentconsent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed. If (b) unless such judgment or settlement involves only the indemnitor payment of money damages by the indemnifying Party, does not assume impose an injunction or other equitable relief or any other obligations upon the indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, the defense of a claim subject to this Section 6.3which has been assumed and is being diligently prosecuted by an indemnifying Party, indemnitor may participate in without the consent of such defenseindemnifying Party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. The indemnitee, promptly upon knowledge After delivery of such claim, shall notify notice from the indemnitor in writing Indemnitee of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoinga Claim, the indemnitee’s failure Indemnitee may elect to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim the Claim. If the Indemnitee notifies the Indemnitor that the Indemnitee is not assuming the defense of the Claim, the Indemnitor shall defend the Claim. Irrespective of whether the Indemnitee or litigation the Indemnitor defends the Claim, in the case of a Claim against a QuatRx Indemnitee the cost and the expense of that defense shall be paid from the escrow fund established under the Escrow Agreement until that fund is exhausted. If the Indemnitee elects to which this indemnity appliesassume the defense of the Claim, with counsel reasonably satisfactory to the indemnitee. The indemnitee Indemnitor shall cooperate in such all reasonable respects, at the Indemnitor's sole cost, risk and expense, with the Indemnitee and its counsel in the investigation, trial, defense and any appeal arising from the matter from which the Claim arose. If the Indemnitor defends the Claim, the Indemnitee shall cooperate in all reasonable respects at with the sole cost Indemnitor and expense its counsel in the investigation, trial, defense and any appeal arising from the matter from which the Claim arose and shall deliver to the Indemnitor or its counsel copies of all pleadings and other information within the indemnitor. Such action Indemnitee's knowledge or possession reasonably requested by the indemnitor shall not preclude the indemnitee from continuing Indemnitor or its counsel that are relevant to the defense of its own interests at its sole cost and expense. The indemnitor will not enter into the subject of any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayedsuch Claim. If the indemnitor does not assume Indemnitor defends the defense of a claim subject to this Section 6.3Claims, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee Indemnitor shall have the right to defendelect to settle any claim for monetary damages without the Indemnitee's consent only if the settlement includes a complete release of the Indemnitee. Any other settlement will be subject to the consent of the Indemnitee. The Indemnitor may not admit any liability of the Indemnitee or waive any of the Indemnitee's rights without the Indemnitee's prior consent. The Indemnitor shall not be liable for any settlement effected without its prior consent, compromise such consent not to be unreasonably withheld. If any Claim results in a judgment or settle settlement consistent with the claim terms of this Section 11.5(b), then, subject to the rules set forth in this Section 11 that could result in indemnification "beyond" the Indemnity Shares held in escrow (see 69 Sections 11.1(b) and 11.4(c)), such manner as it may deem appropriate, at the indemnitor’s expensejudgment or settlement shall be paid out of any remaining Indemnity Shares.

Defense. The indemniteeIf any action discussed in Section 10.5 is brought against an indemnified party by a Third Party, promptly upon knowledge the indemnifying Party will be entitled to participate in and to assume the defense thereof, with counsel reasonably acceptable to the indemnified party, to the extent that it may wish, and after notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnified party shall have the right to participate, at its own expense, in the defense of such claim, ; provided that the indemnifying Party shall notify not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnitor latter in writing of any claim connection with the defense thereof unless the indemnifying Party has failed to which any indemnity hereunder applies, giving reasonable details assume and diligently prosecute the defense of such claim. The indemnifying Party will keep the indemnified party reasonably informed of the status of any such Third Party action. Notwithstanding any of the foregoingforegoing to the contrary, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity indemnified party will be reduced equitably entitled to reflect such material prejudice). The indemnitor may, at select its option own counsel and its cost, assume the defense of any claim or litigation action brought against it if the indemnifying Party fails to which this indemnity appliesassume and diligently prosecute such defense, with counsel reasonably satisfactory the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnitee. The indemnitee shall indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the prosecution or defense of its own interests such indemnified claim at its sole cost and expenseno unreasonable expense to the indemnified party. The indemnitor will not No indemnifying Party shall consent to entry of any judgment or enter into any settlement of or compromise with respect to a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, either (a) without the indemnitee’s prior written consentconsent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed. If (b) unless such judgment, settlement or compromise involves only the indemnitor payment of monetary damages by the indemnifying Party (which monetary damages are less than or equal to any cap applicable thereto), does not assume require any payment by or impose an injunction or other equitable relief or any other obligation upon the indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement or compromise of any such action, the defense of a claim subject to this Section 6.3which has been assumed and diligently pursued by an indemnifying Party, indemnitor may participate in without the consent of such defenseindemnifying Party, at its expense, on a monitoring, non-controlling basis, and the indemnitee which consent shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expensenot be unreasonably withheld.

Defense. The indemniteeA person or entity seeking indemnification under this ARTICLE IX (the “Indemnitee”) shall give notice to the indemnifying Party (the “Indemnitor”) of a Claim or other circumstances likely to give rise to a request for indemnification, promptly upon knowledge after the Indemnitee becomes aware of such claim, shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoing, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice)same. The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesIndemnitor, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written Indemnitee consent, which consent shall not be unreasonably withheld, conditioned or delayed. If , shall be afforded the indemnitor does not assume opportunity to undertake the defense of a claim and to settle by compromise or otherwise any Claim for which indemnification is available under this ARTICLE IX. The Indemnitor’s selection of legal counsel is subject to this Section 6.3the Indemnitee’s approval (which approval shall not be unreasonably withheld). If an Indemnitor so assumes the defense of any Claim, indemnitor the Indemnitee may participate in such defensedefense with legal counsel of the Indemnitee’s selection and at the expense of the Indemnitee. Indemnitor may not settle any Claim against Indemnitee or otherwise consent to any final order or judgement regarding same if the settlement, at its expensefinal order or judgement includes an admission of wrongdoing in Indemnitee’s or Affiliate’s name unless Indemnitee or Affiliate, as applicable, consents in writing. If the Indemnitor, upon the expiration of the fifteen (15) days after receipt of notice of a Claim by the Indemnitee, has not assumed the expense of the defense thereof, the Indemnitee may thereupon undertake the defense thereof on a monitoring, non-controlling basisbehalf of, and the indemnitee shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expense.risk and expense of, the Indemnitor, with all reasonable costs and expenses of such defense to be paid by the Indemnitor. DocuSign Envelope ID: 3B89CA13-AE76-411C-A9B8-50AA80E3983E

Defense. The indemnitee, promptly upon knowledge (i) Upon delivery of such claim, shall notify notice from the indemnitor in writing Indemnitee of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoinga Claim, the indemnitee’s failure Indemnitee may elect to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation such Claim by selecting counsel to defend the Indemnitee against the matter from which this indemnity appliesthe Claim arose, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the Indemnitor's sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost cost, risk and expense. The indemnitor Indemnitor shall cooperate in all reasonable respects, at the Indemnitor's sole cost, risk and expense, with the Indemnitee and its counsel in the investigation, trial, defense and any appeal arising from the matter from which the Claim arose and shall deliver to the Indemnitee or its counsel copies of all pleadings and other information within the Indemnitor's knowledge or possession reasonably requested by the Indemnitee or its counsel that are relevant to the defense of the subject of any such Claim and that will not enter into any settlement of a claim that involves a remedy other than prejudice the payment of money by the indemnitorIndemnitor's position, claims or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent defenses. The Indemnitor shall not be liable for any settlement effected without its prior consent, such consent not to be unreasonably withheld, conditioned or delayed. If the indemnitor does subject of any Claim results in a judgment or settlement consistent with the terms of this Section 11.6(b), the Indemnitor shall promptly pay such judgment or settlement. The Indemnitee shall consult with the Indemnitor in good faith and in a commercially reasonable manner, including providing notice of any significant development in the defense of any Claim, in connection with the defense of any Claim under this Section 11.6(b)(i). (ii) In the event that the Indemnitee elects not to assume the defense of a claim such Claim, the Indemnitor shall assume the defense of such Claim by providing counsel (such counsel subject to this Section 6.3, indemnitor may participate in such defensethe reasonable approval of the Indemnitee) to defend the Indemnitee against the matter from which the Claim arose, at its the Indemnitor's sole cost, risk and expense. The Indemnitee shall cooperate in all reasonable respects, at the Indemnitor's sole cost, risk and expense, on a monitoringwith the Indemnitor and its counsel in the investigation, non-controlling basistrial, defense and any appeal arising from the indemnitee matter from which the Claim arose. The Indemnitor shall have the right to defend, compromise elect to settle any claim for monetary damages without the Indemnitee's consent only if the settlement includes a complete release of the Indemnitee. Any other settlement will be subject to the consent of the Indemnitee. The Indemnitor may not admit any liability of the Indemnitee or settle waive any of the claim in such manner as it may deem appropriate, at Indemnitee's rights without the indemnitor’s expenseIndemnitee's prior consent.

Defense. The indemnitee, promptly upon knowledge (i) Upon delivery of such claim, shall notify notice from the indemnitor in writing Indemnitee of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoinga Claim, the indemnitee’s failure Indemnitee may elect to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation such Claim by selecting counsel to defend the Indemnitee against the matter from which this indemnity appliesthe Claim arose, with counsel reasonably satisfactory at the Indemnitor's sole cost, risk and expense, subject to the indemniteeIndemnitor's right of dispute as set forth in clause (a) above. The indemnitee Indemnitor shall cooperate in such defense in all reasonable respects respects, at the Indemnitor's sole cost cost, risk and expense expense, with the Indemnitee and its counsel in the investigation, trial, defense and any appeal arising from the matter from which the Claim arose and shall deliver to the Indemnitee or its counsel copies of all pleadings and other information within the indemnitor. Such action Indemnitor's knowledge or possession reasonably requested by the indemnitor shall not preclude the indemnitee from continuing Indemnitee or its counsel that are relevant to the defense of the subject of any such Claim and that will not prejudice the Indemnitor's position, claims or defenses. The Indemnitor shall not be liable for any settlement effected without its own interests prior consent, such consent not to be unreasonably withheld. If the subject of any Claim results in a judgment or settlement consistent with the terms of this Section 10.6(b), the Indemnitor shall promptly pay such judgment or settlement. The Indemnitee shall consult with the Indemnitor in good faith and in a commercially reasonable manner, including providing notice of any significant development in the defense of any Claim, in connection with the defense of any Claim under this Section 10.6(b)(i). (ii) In the event that the Indemnitee elects not to assume the defense of such Claim, the Indemnitor shall assume the defense of such Claim by providing counsel (such counsel subject to the reasonable approval of the Indemnitee) to defend the Indemnitee against the matter from which the Claim arose, at its the Indemnitor's sole cost cost, risk and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights Indemnitee shall cooperate in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the indemnitor does not assume the defense of a claim subject to this Section 6.3, indemnitor may participate in such defenseall reasonable respects, at its the Indemnitor's sole cost, risk and expense, on a monitoringwith the Indemnitor and its counsel in the investigation, non-controlling basistrial, defense and any appeal arising from the indemnitee matter from which the Claim arose. The Indemnitor shall have the right to defend, compromise elect to settle any claim for monetary damages without the Indemnitee's consent only if the settlement includes a complete release of the Indemnitee. Any other settlement will be subject to the consent of the Indemnitee. The Indemnitor may not admit any liability of the Indemnitee or settle waive any of the claim in such manner as it may deem appropriate, at Indemnitee's rights without the indemnitor’s expenseIndemnitee's prior consent.

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing of With respect to any claim Proceeding as to which any indemnity hereunder appliesIndemnitee notifies Covidien plc and Covidien Ltd. of the commencement thereof, giving reasonable details of such claim. Notwithstanding Covidien Ltd. will be entitled to participate in the foregoingProceeding at its own expense and except as otherwise provided below, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices Covidien Ltd. so wishes, it may assume the indemnitor’s ability defense thereof with counsel reasonably satisfactory to defend such claim as provided herein (in which event the indemnitee’s right Indemnitee. After notice from Covidien Ltd. to indemnity will be reduced equitably Indemnitee of its election to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesProceeding, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor Covidien Ltd. shall not preclude the indemnitee from continuing be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy such Proceeding other than the payment reasonable costs of money by the indemnitor, investigation or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayedas otherwise provided below. If the indemnitor does not assume the defense of a claim subject to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee Indemnitee shall have the right to defend, compromise or settle the claim employ legal counsel in such manner Proceeding, but all Expenses related thereto incurred after notice from Covidien Ltd. of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by Covidien Ltd., (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Covidien Ltd. in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, or (iv) Covidien Ltd. shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Covidien Ltd. Covidien Ltd. shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Covidien plc or Covidien Ltd., (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the avoidance of doubt, that Covidien Ltd. may deem appropriateassume defense of any such proceeding described in this sentence with Indemnitee’s consent, at provided that any such consent shall not affect the indemnitor’s expenserights of Indemnitee under the foregoing provisions of this Section 6(b)).

Defense. The indemnitee, promptly upon knowledge of such claim, shall notify the indemnitor in writing of With respect to any claim Proceeding as to which any indemnity hereunder appliesIndemnitee notifies Covidien plc and Covidien Ltd. of the commencement thereof, giving reasonable details of such claim. Notwithstanding Covidien plc will be entitled to participate in the foregoingProceeding at its own expense and except as otherwise provided below, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except to the extent such failure materially prejudices Covidien plc so wishes, it may assume the indemnitor’s ability defense thereof with counsel reasonably satisfactory to defend such claim as provided herein (in which event the indemnitee’s right Indemnitee. After notice from Covidien plc to indemnity will be reduced equitably Indemnitee of its election to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim or litigation to which this indemnity appliesProceeding, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor Covidien plc shall not preclude the indemnitee from continuing be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense of its own interests at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy such Proceeding other than the payment reasonable costs of money by the indemnitor, investigation or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayedas otherwise provided below. If the indemnitor does not assume the defense of a claim subject to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee Indemnitee shall have the right to defend, compromise or settle the claim employ legal counsel in such manner Proceeding, but all Expenses related thereto incurred after notice from Covidien plc of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of legal counsel by Indemnitee has been authorized by Covidien plc, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Covidien plc in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, or (iv) Covidien plc shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Covidien plc. Covidien plc shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Covidien Ltd. or Covidien plc, (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the avoidance of doubt, that Covidien plc may deem appropriateassume defense of any such proceeding described in this sentence with Indemnitee’s consent, at provided that any such consent shall not affect the indemnitor’s expenserights of Indemnitee under the foregoing provisions of this Section 6(b)).

Defense. The indemnitee, promptly upon knowledge obligations and liabilities of such claim, the parties hereunder with respect to a third party claim shall notify the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoing, the indemnitee’s failure to so notify the indemnitor shall not preclude it from seeking indemnification hereunder except be subject to the extent such failure materially prejudices following terms and conditions: (i) An indemnified party shall give the indemnitor’s ability to defend such indemnifying party written notice of a third party claim as provided herein (in which event promptly after receipt by the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor mayindemnified party of notice thereof, and the indemnifying party may undertake at its option and its cost, assume the defense of any claim or litigation to which this indemnity applies, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action defense, compromise and settlement thereof by the indemnitor shall not preclude the indemnitee from continuing the defense representatives of its own interests choosing reasonably acceptable to the indemnified party. The assumption of the defense, compromise and settlement of any such third party claim by the indemnifying party shall be an acknowledgment of the obligation of indemnifying party to indemnify the indemnified party with respect to such claim hereunder. If the indemnified party desires to participate in, but not control, any such defense, compromise and settlement, it may do so at its sole cost and expense. The indemnitor will not enter into any settlement of a claim that involves a remedy other than If, however, the payment of money by the indemnitor, indemnifying party fails or agree refuses to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, without the indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the indemnitor does not assume undertake the defense of a such third party claim subject within ten (10) days after written notice of such claim has been given to this Section 6.3the indemnifying party by the indemnified party, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee indemnified party shall have the right to defendundertake the defense of such claim with counsel of its own choosing with all costs charged to the indemnifying party. (ii) No settlement of a third party claim involving the asserted liability of the indemnifying party under this Section 8.4 shall be made without the prior written consent of both the indemnifying party and the indemnified party. In the event that the indemnifying party wishes to accept or to offer a settlement of a third party claim and the indemnified party rejects the settlement, and the claim is later resolved by settlement, compromise or settle by final judgment of a court of law, the claim in such manner as it may deem appropriate, at indemnifying party's maximum liability to the indemnitor’s expenseindemnified party shall not exceed the rejected settlement amount.

Defense. The indemnitee, promptly upon knowledge If the facts pertaining to the Loss arise out of such claim, shall notify the indemnitor in writing Claim of any claim third party (other than a member of Purchaser Indemnitees or Seller Indemnitees, whichever is entitled to which any indemnity hereunder applies, giving reasonable details indemnification for such matter) and indemnification is available by virtue of such claim. Notwithstanding the foregoingcircumstances of the Loss, the indemnitee’s failure to so notify Obligor must assume the indemnitor shall not preclude it from seeking indemnification hereunder except to defense or the extent such failure materially prejudices prosecution thereof, including the indemnitor’s ability to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor mayemployment of counsel or accountants, at its option and its cost, assume the defense of any claim or litigation to which this indemnity applies, with counsel reasonably satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all reasonable respects at the sole cost and expense of the indemnitor. Such action by the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expense. If representation of both the Obligor and the Claimant by such counsel would be inappropriate due to actual or potential differing interests between the Obligor and the Claimant in such proceeding (such as the availability of defenses to the Claimant’s claim for indemnity), the Claimant (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the Obligor. The indemnitor will Claimant shall have the right to determine and adopt (or, in the case of a proposal by Obligor, to approve) a settlement of such matter in its reasonable discretion, except that Claimant need not enter into consent to any settlement that (a) imposes any non-monetary obligation or (b) Obligor does not agree to pay in full. The Obligor shall not be liable for any settlement of a claim that involves a remedy other than the payment of money by the indemnitor, or agree to any action that would bind the indemnitee or compromise indemnitee’s rights in any way, such Claim effected without the indemnitee’s its prior written consent, which consent shall not be unreasonably withheld, conditioned delayed, or delayedconditioned. If Whether or not the indemnitor does not assume Obligor chooses to so defend or prosecute such Claim, all the parties hereto shall cooperate in the defense of a claim subject to this Section 6.3or prosecution thereof and shall furnish such records, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basisinformation, and the indemnitee shall have the right to defendtestimony, compromise or settle the claim and attend such conferences, discovery proceedings, hearings, trials, and appeals, as may be reasonably requested in such manner as it may deem appropriate, at the indemnitor’s expenseconnection therewith.

Defense. The indemniteeindemnifying party will be entitled to participate in, promptly upon knowledge of such claim, shall notify and to ------- the indemnitor in writing of any claim to which any indemnity hereunder applies, giving reasonable details of such claim. Notwithstanding the foregoing, the indemnitee’s failure to so notify the indemnitor shall not preclude extent that it from seeking indemnification hereunder except may elect by written notice delivered to the extent such failure materially prejudices indemnified party promptly after receiving the indemnitor’s ability notice described in Section 6.6, to defend such claim as provided herein (in which event the indemnitee’s right to indemnity will be reduced equitably to reflect such material prejudice). The indemnitor may, at its option and its cost, assume the defense of any claim third party claim, action or litigation to which this indemnity appliessuit, with counsel satisfactory to such indemnified party; but, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party has reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties will have the right to select separate counsel to assert such legal defenses and otherwise to participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (a) the indemnified party has employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence, (b) the indemnifying party has not employed counsel satisfactory to the indemnitee. The indemnitee shall cooperate in such defense in all indemnified party to represent the indemnified party within a reasonable respects time after notice of commencement of the suit, action or proceeding or (c) the indemnifying party has authorized the employment of counsel for the indemnified party at the sole cost and expense of the indemnitor. Such action by indemnifying party; and except that, if clause (a) or (c) is applicable, such liability will be only in respect of the indemnitor shall not preclude the indemnitee from continuing the defense of its own interests at its sole cost and expensecounsel referred to in such clause (a) or (c). The indemnitor indemnifying party will not enter into agree to any settlement of a claim third party claim, action or suit that involves does not include a remedy other than full release of any further liability on the payment party of money by the indemnitor, or indemnified party with respect to all matters at issue. The indemnifying party will not agree to any settlement of a third party claim, action that would bind the indemnitee or compromise indemnitee’s rights in any way, suit without the indemnitee’s prior indemnified party's written consent, which ; but the indemnified party will not unreasonably withhold its consent shall not to any settlement solely for monetary damages to be unreasonably withheld, conditioned or delayed. If paid by the indemnitor does not assume the defense of a claim subject to this Section 6.3, indemnitor may participate in such defense, at its expense, on a monitoring, non-controlling basis, and the indemnitee shall have the right to defend, compromise or settle the claim in such manner as it may deem appropriate, at the indemnitor’s expenseindemnifying party.