Common use of Notice of Third Party Claims; Assumption of Defense Clause in Contracts

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry of its obligations except to the extent (if any) that Barberry shall have been prejudiced thereby. Barberry may, at its own expense, participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry of (a) Promptly (and in any event within five (5) days after the assertion service of any claim, citation or summons) after becoming aware of any claim or the commencement of any suit, action or proceeding, proceeding made or brought by any Person not a party hereto (a “Third Party Claim”) hereto, in respect of which indemnity may be sought under this Agreement, the Indemnified Party shall give notice thereof to the Indemnifying Party; provided provided, however, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, participate in the defense assume control of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that provided that: (i) Barberrythe Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, and ; (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry assumes .; (iii) before entering into any settlement, compromise, admission or acknowledgement of the validity of such defenseclaim, suit, action or proceeding if (i) the settlement does not unconditionally release the Indemnified Person from all liabilities and obligations with respect to such claim, suit, action or proceeding, or (ii) the settlement could reasonably be expected to have a materially adverse impact on the Indemnified Person, the Indemnifying Person obtains the consent of the Indemnified Person to enter into such settlement, compromise, admission or acknowledgement; and (iv) the Indemnified Person shall have the right (but not the duty) be entitled to participate in the defense thereof and to employ counselparticipate, at its own cost and expense, in the defense of such claim, suit, action or proceeding and to employ separate from the counsel employed by Barberry. counselof its choice for such purpose. (c) If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person . (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. d) Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties Parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Each indemnified party shall give reasonably prompt notice as promptly as is reasonably practicable of a claim ("Claims Notice") to Barberry each indemnifying party, in accordance with the terms of Section 7.3 below, of the assertion of any claim, or the commencement of any suit, action or proceeding, proceeding by any Person not a third party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreementhereunder, and shall give the indemnifying parties such information with respect thereto as the indemnifying parties may reasonably request. The giving of such Claims Notice shall not be a condition precedent to indemnification hereunder; provided provided, however, that the failure of the Indemnified Person to promptly give reasonably prompt notice shall not relieve Barberry of its obligations except reduce the indemnified party's recovery from the indemnifying party only by an amount equal to the extent Losses (if anyincluding attorney's fees) that Barberry shall have been prejudiced therebycaused by such delay. Barberry Upon receipt of such notice, each indemnifying party may, at its own expense, participate in and, upon notice to each indemnified party of such indemnifying party's written agreement that the defense indemnified party is entitled to indemnification pursuant to this Article VI for Losses arising out of any Third Party Claimsuch third party claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the indemnifying party's counsel is reasonably satisfactory to the Indemnified Personindemnified party, and (ii) Barberry the indemnifying party shall thereafter consult with the Indemnified Person indemnified party upon the Indemnified Person’s indemnified party's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceedingproceeding and (iii) the indemnified party shall not be required to permit the indemnifying party to assume the defense of any third party claim which if not first paid, discharged or otherwise complied with would result in an imminent, material interruption or cessation of the conduct of the business of such indemnified party or any material part thereof. If Barberry the indemnifying party assumes such defense, the Indemnified Person indemnified party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofindemnifying party. Whether or not Barberry the indemnifying party chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The (a) If a claim or Action by a Person who is not a Party or an Affiliate thereof (a “Third Party Claim”) is made or brought against any Seller Indemnified Person Party or Purchaser Indemnified Party (an “Indemnified Party”) and such Indemnified Party intends to seek indemnification under this Article X with respect to such claim or Action, such Indemnified Party shall give notice as promptly as is reasonably practicable practicable, and in no event later than ten (10) Business Days, after receiving notice thereof, to Barberry the Party obligated to provide such indemnification under this Article X (the “Indemnifying Party”). Such notice shall specify the provision of this Agreement pursuant to which indemnity is sought, the facts alleged to constitute the basis for such claim, the identity of the assertion Persons bringing such claim or Action, the representations, warranties, covenants or agreements or provision of any claimLaw or Contract alleged to have been breached, or as applicable, and the commencement of any suitamount (or, action or proceedingto the extent not then determinable, by any Person not a party hereto (a “Third Party Claim”the Indemnified Party’s good faith estimate thereof) in respect of which indemnity may be sought under this Agreement; provided that the Indemnified Party intends to seek from the Indemnifying Party hereunder. Subject to Section 10.01, the failure of the Indemnified Person to promptly give notice shall such notification will not relieve Barberry of its obligations affect the indemnification provided hereunder except to the extent the Indemnifying Party’s defense or other rights available to it is actually prejudiced as a result of such failure, and then only to the extent of such prejudice. (if anyb) that Barberry Either Seller shall have been prejudiced therebythe sole power, at its option, to assume the conduct and control of the settlement or defense of any Loss Sharing Claim contemplated by clause (b) of the definition thereof for which it will have at least a majority of the expected financial responsibility or any claim with respect to a Retained Liability, in each case, by giving written notice thereof to Purchaser; provided, that such Seller shall thereafter consult with Purchaser upon Purchaser’s reasonable request for such consultation from time to time with respect to such Loss Sharing Claim or Retained Liability. Barberry mayIf either Seller assumes the conduct and control of such settlement or defense, Purchaser shall reasonably cooperate with such Seller in connection therewith, and Purchaser shall have the right (but not the obligation) to participate in (but not control) such settlement or defense and to employ counsel, at its own cost and expense, separate from the counsel employed by such Seller. The assumption of the conduct and control of such settlement or defense shall not be deemed to be an admission or assumption of liability by either Seller. So long as either Seller is reasonably contesting any such Loss Sharing Claim or claim with respect to a Retained Liability in good faith, Purchaser shall not pay or settle any such Loss Sharing Claim or claim with respect to a Retained Liability. If the Sellers elect not to assume the conduct and control of the settlement or defense of such Loss Sharing Claim or claim with respect to a Retained Liability, then, subject to Section 10.08 below, Purchaser shall have the right to conduct and control the settlement or defense of such Loss Sharing Claim or claim with respect to a Retained Liability, including the right to pay or settle such Loss Sharing Claim or claim with respect to a Retained Liability, provided that, in such event, Purchaser shall waive any right to indemnity by the Sellers for all Covered Losses related to such Loss Sharing Claim or claim with respect to a Retained Liability unless the Sellers shall have consented to such payment or settlement. (c) Purchaser shall have the sole power, at its option, to assume the conduct and control of the settlement or defense of any Loss Sharing Claim contemplated by clause (b) of the definition thereof for which it will have at least a majority of the expected financial responsibility by giving written notice thereof to the Sellers; provided, that Purchaser shall thereafter consult with the Sellers upon the Sellers’ reasonable request for such consultation from time to time with respect to such Loss Sharing Claim. If Purchaser assumes the conduct and control of such settlement or defense, the Sellers shall reasonably cooperate with Purchaser in connection therewith, and either Seller shall have the right (but not the obligation) to participate in (but not control) such settlement or defense and to employ counsel, at its own cost and expense, separate from the counsel employed by Purchaser. The assumption of the conduct and control of such settlement or defense shall not be deemed to be an admission or assumption of liability by Purchaser. So long as Purchaser is reasonably contesting any such Loss Sharing Claim in good faith, neither Seller shall pay or settle any such Loss Sharing Claim. If Purchaser elects not to assume the conduct and control of the settlement or defense of such Loss Sharing Claim, then, subject to Section 10.08 below, the Sellers shall have the right to conduct and control the settlement or defense of such Loss Sharing Claim or claim with respect to a Retained Liability, including the right to pay or settle such Loss Sharing Claim, provided that, in such event, the Sellers shall waive any right to indemnity by Purchaser for all Covered Losses related to such Loss Sharing Claim unless Purchaser shall have consented to such payment or settlement. (d) The Indemnifying Party shall have the sole power, at its option, to assume the conduct and control of the settlement or defense of any Third Party ClaimClaim for which indemnification may be sought under Section 10.02(a), suitSection 10.02(b), action Section 10.03(a), Section 10.03(b) or proceeding (aSection 10.03(d) upon by giving written notice thereof to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereofParty; provided, however, that (i) Barberry’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry Indemnifying Party shall thereafter consult with the Indemnified Person Party upon the Indemnified PersonParty’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry the Indemnifying Party assumes the conduct and control of such settlement or defense, the Indemnified Person Party shall cooperate with the Indemnifying Party in connection therewith, and the Indemnified Party shall have the right (but not the dutyobligation) to participate in the (but not control) such settlement or defense thereof and to employ counsel, at its own cost and expense, separate from the counsel employed by Barberrythe Indemnifying Party. If, howeverThe assumption of the conduct and control of such settlement or defense shall not be deemed to be an admission or assumption of liability by the Indemnifying Party. So long as Indemnifying Party is reasonably contesting any such Third Party Claim in good faith, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel Party shall not pay or settle any such claim. If the Indemnifying Party elects not to assume the conduct and control of both Barberry and the Indemnified Person would present such counsel with a conflict settlement or defense of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, actionthen, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails subject to promptly notify Section 10.08 below, the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will shall have the right to defend, at assume the sole cost conduct and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion control of the Indemnified Person (with the consent settlement or defense of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suitincluding the right to pay or settle such claim, action provided that, in such event, the Indemnified Party shall waive any right to indemnity by the Indemnifying Party for all Covered Losses related to such claim unless the Indemnifying Party shall have consented to such payment or proceedingsettlement. (e) Notwithstanding anything in this Agreement to the contrary, whether or not the Indemnifying Party shall have assumed the conduct or control of the defense or settlement of a Third Party Claim, no Indemnified Party shall admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days after the receipt of the Indemnified Party’s notice of claim pursuant to Section 10.07(a) that it elects to assume the conduct or control of the defense or settlement thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The party who assumes the defense of any Third Party Claim pursuant to Section 10.07(b), Section 10.07(c) or Section 10.07(d) is referred to herein as the “Controlling Party” and the other party with respect to any such Third Party Claim is referred to herein as the “Non-Controlling Party”. (f) Notwithstanding anything in this Agreement to the contrary, if any Third Party Claim is a criminal claim (a “Criminal Third Party Claim”), the subject of such Criminal Third Party Claim may elect to assume the defense of such claim. If a Seller Indemnified Party and a Purchaser Indemnified Party are each subjects of such Criminal Third Party Claim, each such Party may elect to defend the claims against it, no Party shall be deemed to be the Controlling Party and no Party shall have the right to make any settlement, compromise or offer to settle or compromise such Criminal Third Party Claim as it relates to the other Party. (g) Other than with respect to Criminal Third Party Claims, any Non-Controlling Party may become the Controlling Party with respect to any Third Party Claim by releasing the initial Controlling Party from any and all Liability under this Article X with respect to such Third Party Claim and indemnifying the initial Controlling Party against any and all Losses that may be incurred by the initial Controlling Party in connection with such Third Party Claim; provided, however, that if a Third Party Claim alleges wrongdoing by the Controlling Party or its Affiliates or involves other reputational matters relating to the Controlling Party or its Affiliates, the Non-Controlling Party may only become the Controlling Party with the consent of the initial Controlling Party, which consent shall not be unreasonably withheld, conditioned or delayed. (h) Subject to Section 7.11, all of the parties hereto Parties shall reasonably cooperate in the defense or prosecution thereofof any Third Party Claim in respect of which indemnity may be sought hereunder and each Party (or a duly authorized representative of such Party) shall (and shall cause its Affiliates to) furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “"Third Party Claim”") in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry the Indemnifying Person fails to promptly notify the Indemnified Party that Barberry the Indemnifying Party desires to defend the Third Party Claim pursuant, or if Barberry the Indemnifying Person gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberrythe Indemnifying Person, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Indemnifying Person in good faith or will be settled at the discretion of the Indemnified Indemnifying Person (with the consent of Barberrythe Indemnifying Person, which consent will not be unreasonably withheld). The Indemnified Indemnifying Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Indemnitee shall give notice as promptly as is reasonably practicable to Barberry the Indemnitor of the assertion of any claim, claim or the commencement of any suit, action Proceeding or proceeding, investigation by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement, which notice shall contain reasonable details concerning such Third Party Claim; provided provided, that the failure of the Indemnified Person Indemnitee to promptly give notice shall not relieve Barberry the Indemnitor of its obligations under this Article XI except to the extent (if any) that Barberry the Indemnitor shall have been prejudiced thereby. Barberry The Indemnitor may, at its own expense, (i) participate in the defense of any such Third Party Claim, suit, action or proceeding Claim and (aii) upon written notice to the Indemnified Person Indemnitee and (b) upon delivery by Barberry the Indemnitor’s delivering to the Indemnified Person Indemnitee a written agreement that the Indemnified Person Indemnitee is entitled to indemnification pursuant to Section 11.2 or 11.4 for all Losses arising out of such Third Party Claim, suit, action or proceeding Claim and that Barberry the Indemnitor shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claim, suit, action or proceeding, Claim assume the defense thereof; provided, however, that (iA) Barberrythe Indemnitor shall provide written evidence reasonably satisfactory to the Indemnitee demonstrating that the Indemnitor has a sufficient amount of assets for purposes of such assumption of defense, (B) the Indemnitor’s counsel is reasonably satisfactory to the Indemnified Person, Indemnitee and (iiC) Barberry the Indemnitor shall thereafter consult with the Indemnified Person Indemnitee upon the Indemnified PersonIndemnitee’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry the Indemnitor assumes such defense, the Indemnified Person Indemnitee shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own cost and expense, separate from the counsel employed by Barberrythe Indemnitor. If, however, the Indemnified Person Indemnitee reasonably determines in its judgment that representation by Barberrythe Indemnitor’s counsel of both Barberry the Indemnitor and the Indemnified Person Indemnitee would present such counsel with a conflict of interest, then such Indemnified Person Indemnitee may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding Claim and Barberry the Indemnitor shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnitor chooses to defend or prosecute contest any such Third Party Claim, suit, action or proceeding, all upon the request of the parties hereto Indemnitee, the other Parties shall cooperate in provide reasonable cooperation to the defense or prosecution thereofIndemnitee with respect thereto.

Notice of Third Party Claims; Assumption of Defense. The Each Indemnified Person shall give reasonably prompt notice as promptly as is reasonably practicable of a claim ("Claims Notice") to Barberry each indemnifying party, in accordance with the terms of Section 11.3, of the assertion of any claim, or the commencement of any suit, action or proceeding, proceeding by any Person not a third party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreementhereunder, and shall give the indemnifying parties such information with respect thereto as the indemnifying parties may reasonably request. The giving of such Claims Notice shall not be a condition precedent to indemnification hereunder; provided provided, however, that the failure of to give reasonably prompt notice shall reduce the Indemnified Person to promptly give notice shall not relieve Barberry of its obligations except Person's recovery from the indemnifying parties only by an amount equal to the extent damages, costs and expenses (including attorneys fees), if any) that Barberry shall have been prejudiced thereby, caused by such delay. Barberry Upon receipt of such notice, each indemnifying party may, at its own expense, (i) participate in the defense of any Third Party Claim, suit, action or proceeding and (aii) upon notice to the each Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a of such indemnifying party's written agreement that the Indemnified Person is entitled to indemnification pursuant to this Article 9 for all Losses arising out of such Third Party Claimthird-party claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, suit, action action, or proceeding, assume the defense thereof; provided, however, that (ix) Barberry’s the indemnifying party's counsel is reasonably satisfactory to the Indemnified Person, and ; (iiy) Barberry the indemnifying party shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceedingproceeding and (z) the Indemnified Person shall not be required to permit the indemnifying party to assume the defense of any third-party claim which if not first paid, discharged, or otherwise complied with would result in an imminent, material interruption or cessation of the conduct of the Indemnified Party's business or any material part thereof. If Barberry the indemnifying party assumes such defense, the Indemnified Person Party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofindemnifying party. Whether or not Barberry the indemnifying party chooses to defend or prosecute any such Third Party Claimclaim, suit, action action, or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable practicable, but in any event no later than five (5) Business Days after receiving notice thereof, to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this AgreementAgreement (which notice shall specify in reasonable detail the nature and amount of such claim together with such information as may be necessary for the Indemnifying Person to determine that the limitations in Section 10.4 have been satisfied or do not apply); provided provided, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article X except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry shall be liable for (b) upon notice to the entire amount of any LossIndemnified Person, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; providedthereof with counsel of its own choice and in the event of such assumption, howevershall have the exclusive right, that subject to clause (i) Barberry’s counsel is reasonably satisfactory of Section 10.7, to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for settle or compromise such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. Ifthe Indemnifying Person, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it will refrain from making any public announcements in any respect of such Third Party Claimclaim, actionsuit, suit action or proceeding and Barberry shall pay all or otherwise communicating with the news media without the prior consent of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Person. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof. Notwithstanding anything to the contrary set forth in this Agreement, Sellers shall continue to control the defense of the Venezuelan Arbitration and the prosecution of the Peruvian Arbitration in all respects following the applicable Closing with respect to the Venezuelan Arbitration Entities and the Peruvian Acquired Companies.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses Damages arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossDamages, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give written notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceedingProceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VIII except to the extent (if any) that Barberry the Indemnifying Person shall have been actually prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, expense (a) participate in the defense of any Third Party Claim, suit, action such claim or proceeding Proceeding and (ab) upon written notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person’s delivering to the Indemnified Person of a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 8.2 or 8.3, as applicable, for all Losses arising out of such Third Party Claim, suit, action claim or proceeding and that Barberry shall be liable for the entire amount of any LossProceeding, at any time during the course of any such Third Party Claim, suit, action claim or proceedingProceeding, assume the defense thereof; provided, however, that (i) Barberrythe Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person has the financial resources to perform its obligations hereunder, as reasonably determined by the Indemnified Person, and (iii) the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claimclaim or Proceeding; provided, suitfurther, action that the Indemnifying Person shall not have the right to assume the defense of any claim or proceedingProceeding involving criminal liability or in which any relief other than monetary damages is sought against the Indemnified Person. If Barberry the Indemnifying Person assumes such defensethe defense of a claim or Proceeding pursuant to this Section 8.6, the Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. Ifthe Indemnifying Person; provided, however, that if counsel for the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then interest exists between such Indemnified Person may employ separate and the counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of utilized by the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of BarberryIndemnifying Person, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion expenses of the Indemnified Person (with Person’s counsel shall be paid by the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Person. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claim, suit, action claim or proceedingProceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberrythe Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry the Indemnifying Person fails to promptly notify the Indemnified Party that Barberry the Indemnifying Party desires to defend the Third Party Claim pursuant, or if Barberry the Indemnifying Person gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberrythe Indemnifying Person, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Indemnifying Person in good faith or will be settled at the discretion of the Indemnified Indemnifying Person (with the consent of Barberrythe Indemnifying Person, which consent will not be unreasonably withheld). The Indemnified Indemnifying Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Indemnitee shall give notice as promptly as is reasonably practicable to Barberry the Indemnitor of the assertion of any claim, claim (or the commencement of any suit, action or proceeding, by any Person not a party hereto hereto) (other than by a “Third Party Claim”Governmental Authority with respect to Taxes, which shall be governed by Section 13.6) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person Indemnitee to promptly give notice shall not relieve Barberry the Indemnitor of its obligations under this Article 12 except to the extent (if any) that Barberry the Indemnitor shall have been prejudiced thereby. Barberry The Indemnitor may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person Indemnitee and (b) upon delivery by Barberry the Indemnitor’s delivering to the Indemnified Person Indemnitee a written agreement that the Indemnified Person Indemnitee is entitled to indemnification pursuant to Section 12.2 or 12.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnitor shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberrythe Indemnitor shall provide written evidence reasonably satisfactory to the Indemnitee demonstrating that the Indemnitor has a sufficient amount of assets for purposes of such assumption of defense, (ii) the Indemnitor’s counsel is reasonably satisfactory to the Indemnified Person, Indemnitee and (iiiii) Barberry the Indemnitor shall thereafter consult with the Indemnified Person Indemnitee upon the Indemnified PersonIndemnitee’s reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnitor assumes such defense, the Indemnified Person Indemnitee shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnitor. If, however, the Indemnified Person Indemnitee reasonably determines in its judgment that representation by Barberrythe Indemnitor’s counsel of both Barberry the Indemnitor and the Indemnified Person Indemnitee would present such counsel with a conflict of interest, then such Indemnified Person Indemnitee may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnitor shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnitor chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry of (a) Promptly (and in any event within five (5) days after the assertion service of any claim, citation or summons) after becoming aware of any claim or the commencement of any suit, action or proceeding, proceeding made or brought by any Person not a party hereto (a “Third Party Claim”) hereto, in respect of which indemnity may be sought under this Agreement, the Indemnified Party shall give notice thereof to the Indemnifying Party; provided provided, however, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, , (i) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding, and (aii) upon notice to the Indemnified Person and (b) upon the delivery by Barberry the Indemnifying Person to the Indemnified Person of a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that provided that: (iiii) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and ; and (iiiv) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. . (c) If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. the Indemnifying Person. (d) If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person . (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. e) Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties Parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, claim (or the commencement of any suit, action or proceeding, ) by any unaffiliated Person not a party hereto (other than by a “Third Party Claim”Governmental Body with respect to Taxes, which shall be governed by Section 8.10(e)) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VIII except to the extent (if any) that Barberry the Indemnifying Person shall have been actually prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (i) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (aii) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person’s delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 8.02, 8.03 or 8.04 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (ia) Barberrythe Indemnifying Person shall provide written evidence reasonably satisfactory to the Indemnified Person demonstrating that the Indemnifying Person has a sufficient amount of financial resources to vigorously defend such matter, (b) the Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, Person and (iic) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding; provided, further, that the Indemnifying Person shall not have the right to assume the defense of any claim, suit, action or proceeding involving criminal liability or in which any relief other than monetary damages is sought against the Indemnified Person or that could otherwise have an adverse impact on the Buyer, its Affiliates or their businesses. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceedingProceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VIII except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action claim or proceeding Proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action claim or proceedingProceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action claim or proceedingProceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythereof. If, however, If the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim or Proceeding, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claim, suit, action claim or proceedingProceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XII except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, : (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding; and (ab) subject to Section 12.6, upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 12.2 or Section 12.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that that: (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interestinterest or if the Indemnifying Person's counsel is otherwise not reasonably satisfactory to the Indemnified Person, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofthereof at the Indemnifying Person's expense (except as set forth in Section 12.5).

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give written notice (the “Initial Notice”) as promptly as is reasonably practicable practicable, but in any event no later than 10 Business Days after receiving notice thereof, to Barberry the Indemnifying Person of the written assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may is to be sought under this Agreement; provided Agreement (which notice shall specify in reasonable detail the nature of such claim and the estimated amount (if then susceptible to estimation) that the Indemnified Person at that time plans to seek hereunder from the Indemnifying Person, together with such reasonably available information (if not already available to the Indemnifying Person) as may be necessary for the Indemnifying Person to determine that the limitations in Section 8.4 have been satisfied or do not apply); provided, that failure of the Indemnified Person to promptly give such notice of any such claim or commencement shall not relieve Barberry release, waive or otherwise affect the obligations under this Article 8 of its obligations the Indemnifying Person with respect thereto except to the extent (if any) that Barberry shall have been it is materially prejudiced therebyby the failure or delay in giving such notice. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry to within 10 Business Days after the receipt of the Initial Notice from the Indemnified Person a written agreement that of the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s thereof with counsel is of its own choice reasonably satisfactory acceptable to the Indemnified Person, and in the event of such assumption, shall have the exclusive right, subject to compliance by the Indemnifying Person with clauses (iii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for and (iii) of Section 8.7, to settle or compromise such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person does not so elect to assume such defense in accordance with the terms of this Section 8.6, the Indemnified Person may defend such claim, suit, action or proceeding in such manner as the Indemnified Person may deem appropriate, including settling such claim or action or proceeding (after giving notice of the same to the Indemnifying Person) on such terms as the Indemnified Person may deem appropriate, and the Indemnifying Person shall assist and cooperate with such defense in accordance with Section 5.3 and, if liable pursuant to this Article 8, shall promptly indemnify the Indemnified Person in accordance with the provisions of this Article 8. If the Indemnifying Person so assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, counsel separate from the counsel employed by Barberry. Ifthe Indemnifying Person; provided, however, that the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel expense of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry so employed shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted borne by the Indemnified Person in good faith unless there exists actual or will be settled at potential conflicting interests between the discretion of Indemnifying Person and the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofPerson. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give written notice (the “Initial Notice”) as promptly as is reasonably practicable practicable, but in any event no later than ten Business Days after receiving notice thereof, to Barberry the Indemnifying Person of the written assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may is to be sought under this Agreement; provided Agreement (which notice shall specify in reasonable detail the nature of such claim and the estimated amount (if then susceptible to estimation) that the Indemnified Person at that time plans to seek hereunder from the Indemnifying Person, together with such reasonably available information (if not already available to the Indemnifying Person) as may be necessary for the Indemnifying Person to determine that the limitations in Section 9.4 have been satisfied or do not apply); provided, that failure of the Indemnified Person to promptly give such notice of any such claim or commencement shall not relieve Barberry release, waive or otherwise affect the obligations under this Article 9 of its obligations the Indemnifying Person with respect thereto except to the extent (if any) that Barberry shall have been it is materially prejudiced therebyby the failure or delay in giving such notice. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry to within ten Business Days after the receipt of the Initial Notice from the Indemnified Person a written agreement that of the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s thereof with counsel is of its own choice reasonably satisfactory acceptable to the Indemnified Person, and in the event of such assumption, shall have the exclusive right, subject to compliance by the Indemnifying Person with clauses (iii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for and (iii) of Section 9.7, to settle or compromise such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Persons do not so elect to assume such defense in accordance with the terms of this Section 9.6, the Indemnified Person may defend such claim, suit, action or proceeding in such manner as the Indemnified Person may deem appropriate, including settling such claim or action or proceeding (after giving notice of the same to each of the Indemnifying Persons) on such terms as the Indemnified Person may deem appropriate, and the Indemnifying Persons shall assist and cooperate fully with such defense as reasonably requested by the Indemnified Person and shall promptly indemnify the Indemnified Person in accordance with the provisions of Section 9.2 or 9.3, as applicable. If the Indemnifying Person so assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, counsel separate from the counsel employed by Barberry. Ifthe Indemnifying Person; provided, however, that the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel expense of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry so employed shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted borne by the Indemnified Person in good faith unless there exists actual or will be settled at potential conflicting interests between the discretion of Indemnifying Persons and the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofPerson. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberrythe Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry the Indemnifying Person fails to promptly notify the Indemnified Party that Barberry the Indemnifying Party desires to defend the Third Party Claim pursuant, or if Barberry the Indemnifying Person gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberrythe Indemnifying Person, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberrythe Indemnifying Person, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give written notice (the “Initial Notice”) as promptly as is reasonably practicable practicable, but in any event no later than 10 Business Days after receiving notice thereof, to Barberry the Indemnifying Person of the written assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may is to be sought under this Agreement; provided Agreement (which notice shall specify in reasonable detail the nature of such claim and the estimated amount (if then susceptible to estimation) that the Indemnified Person at that time plans to seek hereunder from the Indemnifying Person, together with such reasonably available information (if not already available to the Indemnifying Person) as may be necessary for the Indemnifying Person to determine that the limitations in Section 8.4 have been satisfied or do not apply); provided, that failure of the Indemnified Person to promptly give such notice of any such claim or commencement shall not relieve Barberry release, waive or otherwise affect the obligations under this Article 8 of its obligations the Indemnifying Person with respect thereto except to the extent (if any) that Barberry shall have been it is materially prejudiced therebyby the failure or delay in giving such notice. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry to within 10 Business Days after the receipt of the Initial Notice from the Indemnified Person a written agreement that of the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s thereof with counsel is of its own choice reasonably satisfactory acceptable to the Indemnified Person, and in the event of such assumption, shall have the exclusive right, subject to compliance by the Indemnifying Person with clauses (iii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for and (iii) of Section 8.7, to settle or compromise such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person does not so elect to assume such defense in accordance with the terms of this Section 8.6, the Indemnified Person may defend such claim, suit, action or proceeding in such manner as the Indemnified Person may deem appropriate, including settling such claim or action or proceeding (after giving notice of the same to the Indemnifying Person) on such terms as the Indemnified Person may deem appropriate, and the Indemnifying Person shall assist and cooperate with such defense in accordance with Section 5.3(c) and, if liable pursuant to this Article 8, shall promptly indemnify the Indemnified Person in accordance with the provisions of this Article 8. If the Indemnifying Person so assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, counsel separate from the counsel employed by Barberry. Ifthe Indemnifying Person; provided, however, that the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel expense of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry so employed shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted borne by the Indemnified Person in good faith unless there exists actual or will be settled at potential conflicting interests between the discretion of Indemnifying Person and the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofPerson. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article X except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced in any material respect thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 10.02 or 10.03 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable liable, subject to Section 10.04, for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume control of the defense thereof; provided, however, provided that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, Person and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. (a) The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person within fifteen (15) days of the assertion of any claim, or the commencement of any suit, action or proceedingProceeding, by any Person not a party hereto (such claim, suit, action or Proceeding, as it pertains to the Indemnified Person, a “"Third Party Claim”") in respect of which indemnity may be sought under this AgreementAgreement (which notice shall specify in reasonable detail the nature and amount (to the extent known by the Indemnified Person) of such claim together with such information (to the extent known by the Indemnified Person) as may be necessary for the Indemnifying Person to determine that the limitations in Section 12.4 have been satisfied or do not apply); provided that provided, that, the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XII except to the extent (if any) that Barberry shall have the Indemnifying Person demonstrates that it has been prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, participate defend the Indemnified Person against the Third Party Claim with counsel of its own choice reasonably satisfactory to the Indemnified Person so long as (i) the Indemnifying Person notifies the Indemnified Person in writing, within fifteen (15) days after the defense Indemnified Person has given notice of any the Third Party Claim, suit, action or proceeding (a) upon notice to that the Indemnifying Person will indemnify the Indemnified Person from and (b) upon delivery by Barberry to against any Losses the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses may suffer resulting from, or arising out of such Third Party Claim (whether or not otherwise required hereunder), (ii) the Indemnifying Person possesses financial resources that would reasonably be expected to be sufficient to defend against the Third Party Claim and to fulfill its indemnification obligations hereunder, (iii) the Third Party Claim does not seek an injunction or other equitable relief that would adversely impact the Access Business, if granted, (iv) the Third Party Claim does not relate to or arise in connection with any criminal action, indictment, allegation, investigation or Proceeding, (v) the Third Party Claim does not relate to or arise in connection with any action, allegation, investigation or Proceeding involving (A) Transferred Intellectual Property or (B) other Intellectual Property licensed to the Purchaser or any of its Affiliates under the Cross License Agreement or either Sublicense if the Purchaser's (or its Affiliate's) operation of the Access Business is the primary focus of such Third Party Claim, suit(vi) settlement of, action or proceeding an adverse judgment with respect to, the Third Party Claim would not reasonably be likely to establish a precedential custom or practice that would reasonably be expected to be materially adverse to the continuing business interests of the Indemnified Person or its Affiliates, (vii) the Indemnified Person has not been advised in writing by counsel reasonably acceptable to the Indemnifying Person that, based on the defenses and positions expected to be asserted as of the time of such advice, a conflict of interest between the Indemnified Person and the Indemnifying Person exists or would reasonably be expected to exist or arise in connection with such Third Party Claim and (viii) the Indemnifying Person conducts the defense of the Third Party Claim with substantially the same amount of diligence as the Indemnifying Person would, acting with a reasonable degree of prudence, exert in defending a comparable claim against itself; provided, that, notwithstanding the foregoing, the Seller shall in all cases be entitled to retain the defense of (1) any Third Party Claim pending on the date hereof that Barberry is a Retained Obligation and (2) so long as the foregoing clauses (ii), (iv), (vii) and (viii) are satisfied, (x) any Third Party Claim relating to or arising in connection with any action, allegation, investigation or Proceeding involving Intellectual Property licensed to the Purchaser or any of its Affiliates under the Cross License Agreement or either Sublicense (other than Third Party Claims of the type described in the foregoing clause (v)(B)) and (y) any claims described in Section 12.2(g). If the Indemnified Person assumes the defense of the Third Party Claim pursuant to the previous sentence, the Indemnifying Person shall have the right to consult with the Indemnified Person regarding the counsel used by the Indemnified Person in connection with such defense. (c) So long as the Indemnifying Person is conducting the defense of the Third Party Claim in accordance with Section 12.7(b) above, (i) the Indemnified Person may, at its election, retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (ii) the Indemnified Person will not consent to the entry of any judgment or enter into any settlement or compromise with respect to the Third Party Claim without the prior written consent of the Indemnifying Person (which consent shall not be liable unreasonably withheld or delayed), (iii) the Indemnifying Person will not consent to the entry of any judgment or enter into any settlement or compromise with respect to the Third Party Claim unless either (A) the Indemnifying Person obtains a written agreement releasing the Indemnified Person from all Loss and Liability thereunder, (B) the settlement agreement entered into in connection therewith includes a written agreement releasing the Indemnified Person from all Loss and Liability thereunder or (C) the Indemnifying Person obtains the written consent of the Indemnified Person (which consent shall not be unreasonably withheld or delayed) and (iv) if the Third Party Claim relates to or arises in connection with any action, allegation, investigation or Proceeding involving Intellectual Property licensed to the Purchaser or any of its Affiliates under the Cross License Agreement or either Sublicense, the Indemnifying Person shall defend any such Third Party Claim with a view only to the interest of the Purchaser and its Affiliates (it being understood and agreed that use of the same counsel for the entire amount Purchaser Indemnified Parties and the Indemnifying Parties will not, in and of any Lossitself, be deemed to result in a conclusion that the Indemnifying Party is not acting with a view only to the interest of the Purchaser and its Affiliates) and shall consult with the Purchaser at any time during all reasonable times as may be reasonably requested by the course Purchaser concerning matters specified by the Purchaser related to the defense of any such Third Party Claim, suit, action . (d) In the event any of the conditions in Section 12.7(b) above is or proceeding, assume the defense thereof; providedbecomes unsatisfied, however, that (i) Barberry’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in may assume and control the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuantand may consent to the entry of any judgment or enter into any settlement or compromise with respect thereto (subject to the prior consent of the Indemnifying Person, which consent shall not be unreasonably withheld or if Barberry gives delayed), (ii) the Indemnifying Person may participate in such notice but fails defense at its sole cost and expense and will, subject to prosecute vigorously the terms and diligently conditions of Article XII, reimburse the Indemnified Person for the fees, costs and expenses of defending against the Third Party Claim (including reasonable attorneys' fees and expenses) and (iii) the Indemnifying Person will remain responsible for any Losses the Indemnified Person may suffer resulting from or settle arising out of the Third Party Claim, then subject to the Indemnified Party will have applicable limitations provided in this Article XII. (e) Whether or not the right to defend, at Indemnifying Person assumes the sole cost and expense defense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The (a) If a claim or Action by a Person who is not a Party or an Affiliate thereof (a “Third Party Claim”) is made or brought against any Seller Indemnified Person Party or Purchaser Indemnified Party (an “Indemnified Party”) and such Indemnified Party intends to seek indemnification under this Article XII with respect to such claim or Action, such Indemnified Party shall give notice as promptly as is reasonably practicable practicable, and in no event later than ten (10) Business Days, after receiving notice thereof, to Barberry the Party obligated to provide such indemnification under this Article XII (the “Indemnifying Party”). Such notice shall specify the provision of this Agreement pursuant to which indemnity is sought, the facts alleged to constitute the basis for such claim, the identity of the assertion Persons bringing such claim or Action, the representations, warranties, covenants or agreements or provision of any claimLaw or Contract alleged to have been breached, or as applicable, and the commencement of any suitamount (or, action or proceedingto the extent not then determinable, by any Person not a party hereto (a “Third Party Claim”the Indemnified Party’s good faith estimate thereof) in respect of which indemnity may be sought under this Agreement; provided that the Indemnified Party intends to seek from the Indemnifying Party hereunder. Subject to Section 12.1, the failure of the Indemnified Person to promptly give notice shall such notification will not relieve Barberry of its obligations affect the indemnification provided hereunder except to the extent the Indemnifying Party’s defense or other rights available to it is actually prejudiced as a result of such failure, and then only to the extent of such prejudice. (if anyb) that Barberry The Indemnifying Party shall have been prejudiced thereby. Barberry maythe sole power, at its own expenseoption, participate in to assume the conduct and control of the settlement or defense of any Third Party ClaimClaim for which indemnification may be sought, suit, action or proceeding at its own expense through counsel of its own choosing (a) upon notice which counsel shall be reasonably acceptable to the Indemnified Person and (b) upon delivery Party), by Barberry giving written notice thereof to the Indemnified Person a written agreement Party; provided, that the Indemnifying Party must notify the Indemnified Person is entitled Party of its election to indemnification for all Losses arising out assume such conduct and control within thirty (30) days following the Indemnifying Party’s receipt of notice of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, howeverprovided further, that (i) Barberry’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry Indemnifying Party shall thereafter consult with the Indemnified Person Party upon the Indemnified PersonParty’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry the Indemnifying Party assumes the conduct and control of such settlement or defense, the Indemnified Person Party shall cooperate with the Indemnifying Party in connection therewith, and the Indemnified Party shall have the right (but not the dutyobligation) to participate in the (but not control) such settlement or defense thereof and to employ counsel, at its own cost and expense, separate from the counsel employed by Barberry. Ifthe Indemnifying Party; provided, however, that, if the Indemnified Person Party shall have reasonably determines in its judgment that concluded joint representation presents a material conflict of interest because of the availability of different or additional defenses to such Indemnified Party or other facts and the conflict of interest cannot be resolved to the reasonable satisfaction of the Indemnified Party by Barberry’s counsel the consent of both Barberry the Indemnifying Party and the Indemnified Person would present such counsel with a conflict of interestParty to the joint representation, then such Indemnified Person may employ Party shall have the right to select separate counsel, reasonably satisfactory to the Indemnifying Party, to participate in the defense of such action on its behalf, and the reasonable fees and expenses of the Indemnified Party’s counsel shall be at the expense of the Indemnifying Party. The assumption of the conduct and control of such settlement or defense shall not be deemed to represent be an admission or defend it assumption of liability by the Indemnifying Party. So long as the Indemnifying Party is using its commercially reasonable efforts to contest any such Third Party Claim in good faith, the Indemnified Party shall not pay or settle any such claim. If the Indemnifying Party elects not to assume the conduct and control of the settlement or defense of such Third Party Claim, actionthen, suit subject to Section 12.9(c) below, the Indemnified Party shall have the right to pay or proceeding and Barberry settle such claim. (c) Notwithstanding anything in this Agreement to the contrary, whether or not the Indemnifying Party shall pay all have assumed the conduct or control of the fees and disbursements in connection defense or settlement of a Third Party Claim, no Indemnified Party shall admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the retention prior written consent of such separate counselthe Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). If Barberry fails to promptly the Indemnifying Party does not notify the Indemnified Party the time period contemplated by Section 12.9(a) that Barberry desires it elects to defend assume the conduct or control of the defense or settlement thereof, the Indemnified Party shall have the right to contest, settle or compromise the claim and shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Party who assumes the defense of any Third Party Claim pursuantpursuant to Section 12.9(b), Section 12.9(c) or if Barberry gives Section 12.9(d) is referred to herein as the “Controlling Party” and the other party with respect to any such notice but fails Third Party Claim is referred to prosecute vigorously herein as the “Non-Controlling Party”. (d) If a Third Party Claim is a criminal claim (a “Criminal Third Party Claim”), the subject of such Criminal Third Party Claim may elect to assume the defense of such claim. If a Seller Indemnified Party and diligently or settle the a Purchaser Indemnified Party are each subjects of such Criminal Third Party Claim, then each such Party may elect to defend the Indemnified claims against it, no Party will shall be deemed to be the Controlling Party and no Party shall have the right to defendmake any settlement, at the sole cost and expense of Barberry, the compromise or offer to settle or compromise such Criminal Third Party Claim as it relates to the other Party. (e) Other than with respect to Criminal Third Party Claims, any Non-Controlling Party may become the Controlling Party with respect to any Third Party Claim either (i) if the other Party fails to assume the conduct and control of the defense of such Third Party within the time period contemplated by all appropriate proceedingsSection 12.9(b) or fails to conduct such defense in a commercially reasonable manner, which proceedings will be prosecuted failure remains uncured ten (10) Business Days following notice by the Indemnified Person in good faith Non-Controlling Party thereof, or will be settled at (ii) by releasing the discretion of initial Controlling Party from any and all indemnification obligations under this Article XII with respect to such Third Party Claim; provided, however, that if a Third Party Claim alleges wrongdoing by the Indemnified Person (Controlling Party or its Affiliates or involves other reputational matters relating to the Controlling Party or its Affiliates, the Non-Controlling Party may only become the Controlling Party with the consent of Barberrythe initial Controlling Party, which consent will shall not be unreasonably withheld). . (f) The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto Parties shall reasonably cooperate in the defense or prosecution thereofof any Third Party Claim in respect of which indemnity may be sought hereunder and each Party (or a duly authorized representative of such Party) shall (and shall cause its Affiliates to) furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Each indemnified party shall give reasonably prompt notice as promptly as is reasonably practicable of a claim ("Claims Notice") to Barberry each indemnifying party, in accordance with the terms of Section 13.3, of the assertion of any claim, or the commencement of any suit, action or proceeding, proceeding by any Person not a third party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreementhereunder, and shall give the indemnifying parties such information with respect thereto as the indemnifying parties may reasonably request. The giving of such Claims Notice shall not be condition precedent to indemnification hereunder; provided that the however, failure of the Indemnified Person to promptly give reasonably prompt notice shall not relieve Barberry of its obligations except reduce the indemnified party's recovery from the indemnifying parties only by an amount equal to the extent damages, costs and expenses (if anyincluding attorneys fees) that Barberry shall have been prejudiced therebycaused by such delay. Barberry Upon receipt of such notice, each indemnifying party may, at its own expense, (i) participate in and (ii) upon notice to each indemnified party of such indemnifying party's written agreement that the defense indemnified party is entitled to indemnification pursuant to this Article XI for Losses arising out of any Third Party Claimsuch third-party claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (ix) Barberry’s the indemnifying party's counsel is reasonably satisfactory to the Indemnified Person, and indemnified party; (iiy) Barberry the indemnifying party shall thereafter consult with the Indemnified Person indemnified party upon the Indemnified Person’s indemnified party's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceedingproceeding and (z) the indemnified party shall not be required to permit the indemnifying party to assume the defense of any third-party claim which if not first paid, discharged or otherwise complied with would result in an imminent, material interruption or cessation of the conduct of the Company's business or any material part thereof. If Barberry the indemnifying party assumes such defense, the Indemnified Person indemnified party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofindemnifying party. Whether or not Barberry the indemnifying party chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (other than by a “Third Party Claim”Governmental Authority with respect to Taxes) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VII, except to the extent (if any) that Barberry the Indemnifying Person shall have been materially prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 7.2 or Section 7.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, Person and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give written notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XII except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, : (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding; and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 12.2 or Section 12.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that that: (i) Barberry’s the Indemnifying Person's counsel is reasonably rea- sonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interestinterest or if the Indemnifying Person's counsel is otherwise not reasonably satisfactory to the Indemnified Person, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided PROVIDED, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this ARTICLE XIII except to the extent (if any) that Barberry the Indemnifying Person shall have been actually prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, expense (a) participate in the defense of any Third Party Claimclaim, demand, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person of a written agreement that the Indemnified Person is entitled to indemnification pursuant to SECTION 13.2 or 13.3 for all Losses arising out of such Third Party Claimclaim, demand, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, demand, suit, action or proceeding, assume the defense thereof; provided, howeverPROVIDED, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, Person and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, demand, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, demand, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, demand, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified --------------------------------------------------- Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XIII except to the extent (if any) that Barberry the Indemnifying Person shall have been actually prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, expense (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person of a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 13.2 or 13.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, Person and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 11.6(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is materially prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim and (ii) upon written notice delivered to the Indemnified Person within twenty (20) Business Days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person; provided, however, that as a condition precedent to the Indemnifying Person’s right to assume control of such defense, it must first enter into an agreement with the Indemnified Person (in form and substance reasonably satisfactory to the Indemnified Person) pursuant to which the Indemnifying Person agrees to be fully responsible for, and to provide full indemnification to the Indemnified Person for, all Losses relating to such Third Party Claim (subject to the limitations set forth in this Agreement); and provided further, however, that the Indemnifying Person will not have the right to assume control of the defense of such Third Party Claim, and, to the extent it is finally determined that the Indemnifying Person must indemnify the Indemnified Person, shall pay the reasonable and documented fees and expenses of counsel retained by the Indemnified Person, if (1) such Third Party Claim seeks as its primary relief non-monetary relief or relates to or arises in connection with any criminal Proceeding, (2) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the Indemnified Person has been advised by counsel that the representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interests between them, (3) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or (4) Seller is the Indemnifying Person and such Third Party Claim relates solely to a breach of one or more of the representations and warranties in Article IV or Article V of this Agreement and seeks money damages in excess of the then-remaining portion of the Indemnity Escrow Funds. (c) If the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing or (ii) the Indemnified Person has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person and the Indemnified Person. (d) Regardless of which Party controls the defense of any Third Party Claim, suitthe Parties shall, action and shall cause their respective Affiliates to, cooperate in the defense or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out prosecution of such Third Party Claim, suitincluding by providing or making available to the controlling Party all witnesses, action pertinent records, materials, and information relating thereto in such Party’s possession or proceeding and that Barberry shall be liable for under such Party’s control (or in the entire amount possession or control of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (iits Representatives) Barberry’s counsel as is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted requested by the Indemnified Person in good faith controlling Party or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofits counsel.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VIII, except to the extent (if any) that Barberry the Indemnifying Person shall have been materially prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 8.2 or Section 8.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, Person and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable after receiving notice thereof, to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceedingProceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided Agreement (which notice shall, to the extent such information is reasonably available, specify in reasonable detail the nature and amount of such claim together with such information as may be necessary for the Indemnifying Person to determine that the failure limitations in Section 10.3 have been satisfied or do not apply). Failure of the Indemnified Person to promptly give the Indemnifying Person notice as provided herein shall not relieve Barberry the Indemnifying Person of any of its obligations hereunder, except to the extent (if any) that Barberry shall have been the Indemnifying Person is actually prejudiced therebyby such failure. Barberry The Indemnifying Person may, at its own expense, (i) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding proceeding, or (aii) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceedingProceeding, assume the defense thereofthereof with counsel reasonably acceptable to the Indemnified Person and shall thereafter keep the Indemnified Person reasonably informed with respect thereto; provided, however, that the Indemnifying Person shall not be entitled to assume the defense of any claim if (iA) Barberry’s counsel is reasonably satisfactory to such claim primarily seeks an injunction or equitable relief against the Indemnified Person, and (iiB) Barberry shall thereafter consult with to the extent the Indemnified Person upon has been advised by counsel in writing (with a copy provided to the Indemnifying Person) that a conflict exists between the Indemnified Person’s reasonable request for Person and the Indemnifying Person in connection with the defense of the third party claim, (C) the third party claim consists of a criminal Proceeding or regulatory Proceeding or (D) the amount of such consultation from time to time claim, together with respect to such Third Party Claimthe amount of all then pending claims, suit, action or proceedingexceeds the then remaining balance of the Escrow Shares. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Person. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceedingProceeding, all of the parties hereto Parties shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 10.5(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is materially prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim, and (ii) upon written notice delivered to the Indemnified Person within thirty (30) days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person; provided, however, that as a condition precedent to the Indemnifying Person’s right to assume control of such defense, it must first: enter into an agreement with the Indemnified Person (in form and substance reasonably satisfactory to the Indemnified Person) pursuant to which the Indemnifying Person agrees to be fully responsible for, and to provide full indemnification to the Indemnified Person for, all Losses relating to such Third Party Claim; (subject to any limitations applicable under ARTICLE X); and, provided further, however, that the Indemnifying Person shall not have the right to assume control of the defense of such Third Party Claim, and shall pay the fees and expenses of counsel retained by the Indemnified Person, if (1) such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Proceeding, (2) the Indemnified Person reasonably believes an adverse determination with respect to such Third Party Claim would be detrimental to or injure the reputation or future business prospects of the Indemnified Person or any of its Affiliates, (3) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to actual conflicts of interest between them, (4) a Shareholder is the Indemnifying Person and such Third Party Claim seeks money damages in excess of the difference between Seven Million Dollars ($7,000,000) and the amount of any indemnifiable Losses from other indemnification claims made under this Agreement and the Contribution Agreement by more than twenty-five percent (25%) of such difference, (5) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or (6) a Shareholder is the Indemnifying Person and the Indemnified Person reasonably believes the defense of such Third Party Claim would adversely affect the Indemnified Person’s relationship with any of its material customers, suppliers, or other business relationships. (c) If the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing or (ii) the Indemnified Person has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person and the Indemnified Person. If the Indemnified Person controls the defense of any Third Party Claim, suitthe Indemnifying Person shall have the right to participate in the defense thereof through its own counsel, action including being informed of developments with respect to the proceeding and being given copies of notices, pleadings, and other documents or proceeding (a) upon notice to instruments served on or received by the Indemnified Person and its counsel, but excluding any information protected from disclosure under attorney-client privilege. (bd) upon delivery by Barberry to Regardless of which Party controls the Indemnified Person a written agreement that defense of any Third Party Claim, the Indemnified Person is entitled to indemnification for all Losses arising out Parties shall, and shall cause their respective Affiliates to, cooperate in the defense or prosecution of such Third Party Claim, suitincluding by providing or making available to the controlling Party all witnesses, action pertinent records, materials, access to relevant employees, and information relating thereto in such Party’s possession or proceeding and that Barberry shall be liable for under such Party’s control (or in the entire amount possession or control of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (iits Representatives) Barberry’s counsel as is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted requested by the Indemnified Person in good faith controlling Party or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofits counsel.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give given notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (extent, if any) , that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (right, but not the duty) , to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Person. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry of (a) Promptly (and in any event within 5 days after the assertion service of any claim, citation or summons) after becoming aware of any claim or the commencement of any suit, action or proceeding, proceeding made or brought by any Person not a party hereto (a “Third Party Claim”) hereto, in respect of which indemnity may be sought under this Agreement; provided that the failure of , the Indemnified Person to promptly Party shall give notice shall not relieve Barberry of its obligations except thereof to the extent Indemnifying Party. (if anyb) that Barberry shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, , (i) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding, and (aii) upon notice to the Indemnified Person and (b) upon the delivery by Barberry the Indemnifying Person to the Indemnified Person of a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that provided that: (iA) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and ; and (iiB) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. . (c) If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. the Indemnifying Person. (d) If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person . (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. e) Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties Parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 9.5(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been prejudiced thereby. Barberry the Indemnifying Person forfeits rights or defenses by reason of such failure. (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim and (ii) upon written notice delivered to the Indemnified Person within twenty (20) Business Days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim; provided, however, that the Indemnifying Person shall not have the right to assume control of the defense of such Third Party Claim (or shall be removed from such in the case of point 4 below), if (1) such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Proceeding, (2) the Indemnified Person reasonably believes an adverse determination with respect to such Third Party Claim would be detrimental to or injure the reputation or future business prospects of the Indemnified Person, (3) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing conflicts of interest between them, (4) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or (5) Seller is the Indemnifying Person and the Indemnified Person reasonably believes the defense of such Third Party Claim would adversely affect the Indemnified Person’s relationship with any of its material customers or material suppliers. (c) If the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Person shall have the right to employ one (1) counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim (and if the Indemnified Person pays and such amounts will not be considered as Losses, as many counsels as the Indemnified Person desires), and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless the Indemnified Person has been advised by legal counsel that a conflict of interest between the Indemnifying Person and the Indemnified Person exists. (d) Regardless of which Party controls the defense of any Third Party Claim, suitthe Parties shall, action and shall cause their respective Affiliates to, reasonably cooperate in the necessary defense or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out prosecution of such Third Party Claim, suitincluding by providing or making available to the controlling Party all necessary witnesses, action pertinent records, materials, and information relating thereto in such Party’s possession or proceeding and that Barberry under such Party’s control (or in the possession or control of any of its Representatives) as is reasonably requested by the controlling Party or its counsel. Such cooperation among the Parties shall be liable for the entire amount at no expense other than reimbursement of any Loss, at any time during the course actual out of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that pocket expenses. (ie) Barberry’s counsel is reasonably satisfactory Notwithstanding anything to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defensecontrary in this Agreement, the Indemnified Person procedures for all Tax Claims shall have the right be governed exclusively by Section 6.1(h) (but and not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheldthis Section 9.6). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person (and, if the Indemnified Person is a UBICS Indemnified Party and the Escrow continues to be held by the Escrow Agent, the Escrow Agent) of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided provided, however that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VII, except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, expense participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, however that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate as counsel of record in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 10.5(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is materially prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim, and (ii) upon written notice delivered to the Indemnified Person within thirty (30) days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person; provided, however, that as a condition precedent to the Indemnifying Person’s right to assume control of such defense, it must first: enter into an agreement with the Indemnified Person (in form and substance reasonably satisfactory to the Indemnified Person) pursuant to which the Indemnifying Person agrees to be fully responsible for, and to provide full indemnification to the Indemnified Person for, all Losses relating to such Third Party Claim; (subject to any limitations applicable under ARTICLE X); and, provided further, however, that the Indemnifying Person shall not have the right to assume control of the defense of such Third Party Claim, and shall pay the fees and expenses of counsel retained by the Indemnified Person, if (1) such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Proceeding, (2) the Indemnified Person reasonably believes an adverse determination with respect to such Third Party Claim would be detrimental to or injure the reputation or future business prospects of the Indemnified Person or any of its Affiliates, (3) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to actual conflicts of interest between them, (4) a Shareholder is the Indemnifying Person and such Third Party Claim seeks money damages in excess of the difference between Seven Million Dollars ($7,000,000) and the amount of any indemnifiable Losses from other indemnification claims made under this Agreement and the Stock Purchase Agreement by more than twenty-five percent (25%) of such difference, (5) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or (6) a Shareholder is the Indemnifying Person and the Indemnified Person reasonably believes the defense of such Third Party Claim would adversely affect the Indemnified Person’s relationship with any of its material customers, suppliers, or other business relationships. (c) If the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing or (ii) the Indemnified Person has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person and the Indemnified Person. If the Indemnified Person controls the defense of any Third Party Claim, suitthe Indemnifying Person shall have the right to participate in the defense thereof through its own counsel, action including being informed of developments with respect to the proceeding and being given copies of notices, pleadings, and other documents or proceeding (a) upon notice to instruments served on or received by the Indemnified Person and its counsel, but excluding any information protected from disclosure under attorney-client privilege. (bd) upon delivery by Barberry to Regardless of which Party controls the Indemnified Person a written agreement that defense of any Third Party Claim, the Indemnified Person is entitled to indemnification for all Losses arising out Parties shall, and shall cause their respective Affiliates to, cooperate in the defense or prosecution of such Third Party Claim, suitincluding by providing or making available to the controlling Party all witnesses, action pertinent records, materials, access to relevant employees, and information relating thereto in such Party’s possession or proceeding and that Barberry shall be liable for under such Party’s control (or in the entire amount possession or control of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (iits Representatives) Barberry’s counsel as is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted requested by the Indemnified Person in good faith controlling Party or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofits counsel.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person (and, if the Indemnified Person is a Public Company Indemnified Party and the Escrow continues to be held by the Escrow Agent, to the Escrow Agent) of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry shall have been prejudiced therebyunder this Article XII. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person’s delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Sections 12.2 or 12.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, provided that (i) Barberrythe Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. (a) The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement, which notice shall specify in reasonable detail the nature and (if then known and, if not then known, a reasonable estimate of) amount of such Third Party Claim; provided provided, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry constitute a waiver of its obligations such Indemnifying Person’s rights and remedies under this Article X except to the extent (if any) that Barberry the Indemnified Person shall have been prejudiced thereby. Barberry If any Third Party Claim against any Indemnified Person is (i) solely for money damages and (ii) where the Company or any Member is the Indemnifying Person, will have no material adverse continuing effect on the Practice or the Acquired Assets, then the Indemnifying Person may, at its own expense, (a) participate in the defense of any such Third Party ClaimClaim and (b) if the Indemnifying Person delivers to the Indemnified Person the acknowledgment and agreement in writing of the Indemnifying Person that, suitif the Third Party Claim is adversely determined, action or proceeding (a) such Indemnifying Person has an obligation to provide indemnification to the Indemnified Person in respect thereof, then, upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Indemnifying Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, may assume the defense thereof; provided, however, that thereof with counsel of its own choice (i) Barberry’s counsel is reasonably satisfactory to the Indemnified Person) and in the event of such assumption, and (ii) Barberry shall thereafter consult with have the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time right, subject to time with respect Section 10.8, to settle or compromise such Third Party Claim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Person. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof. (b) Subject to the second sentence of Section 10.7(a), the Indemnified Person shall have the right to assume the defense of a Third Party Claim with counsel of its own choice (reasonably satisfactory to the Indemnifying Person) and, in the event of such assumption, shall have the right, subject to Section 10.8, to settle or compromise such Third Party Claim. If the Indemnified Person assumes such defense, the Indemnifying Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from counsel employed by the Indemnified Person. Whether or not the Indemnified Person chooses to defend or prosecute any such Third Party Claim, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Each indemnified party shall give reasonably prompt notice as promptly as is reasonably practicable of a claim ("Claims Notice") to Barberry each indemnifying party, in accordance with the terms of Section 17.3, of the assertion of any claim, or the commencement of any suit, action or proceeding, proceeding by any Person not a third party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreementhereunder, and shall give the indemnifying parties such information with respect thereto as the indemnifying parties may reasonably request. The giving of such Claims Notice shall not be condition precedent to indemnification hereunder; provided provided, however, that the failure of the Indemnified Person to promptly give reasonably prompt notice shall not relieve Barberry of its obligations except reduce the indemnified party's recovery from the indemnifying parties only by an amount equal to the extent damages, costs and expenses (including attorneys fees), if any) that Barberry shall have been prejudiced thereby, caused by such delay. Barberry Upon receipt of such notice, each indemnifying party may, at its own expense, (i) participate in and (ii) upon notice to each indemnified party of such indemnifying party's written agreement that the defense indemnified party is entitled to indemnification pursuant to this Article XV for Losses arising out of any Third Party Claimsuch third-party claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (ix) Barberry’s the indemnifying party's counsel is reasonably satisfactory to the Indemnified Person, and indemnified party; (iiy) Barberry the indemnifying party shall thereafter consult with the Indemnified Person indemnified party upon the Indemnified Person’s indemnified party's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceedingproceeding and (z) the indemnified party shall not be required to permit the indemnifying party to assume the defense of any third-party claim which if not first paid, discharged or otherwise complied with would result in an imminent, material interruption or cessation of the conduct of the Surviving Corporation's business or any material part thereof. If Barberry the indemnifying party assumes such defense, the Indemnified Person indemnified party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofindemnifying party. Whether or not Barberry the indemnifying party chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 12.5) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim and all documents and communications received with respect to such Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is prejudiced thereby. Barberry . (b) Subject in all respects to the R&W Insurance Policy, the Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim and (ii) upon written notice delivered to the Indemnified Person within forty-five (45) calendar days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person; provided, however, that the Indemnifying Person will not have the right to assume control of the defense of such Third Party Claim, and, subject in all respects to the R&W Insurance Policy, shall pay the fees and expenses of counsel retained by the Indemnified Person, if (A) such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Proceeding, (B) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be (based on the opinion of outside counsel) inappropriate due to actual or potential differing or conflicts of interests between them or (C) such Third Party Claim is being asserted by (x) a Governmental Authority, (y) a customer of Purchaser or its Subsidiaries, including a Company or (z) a Provider. (c) If the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, then, subject in all respects to the R&W Insurance Policy, the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person. (d) Regardless of which Party controls the defense of any Third Party Claim, suitthe Parties shall, action and shall cause their respective Affiliates to, reasonably cooperate in the defense or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out prosecution of such Third Party Claim, suitincluding by providing or making available to the controlling Party all witnesses, action pertinent records, materials, and information relating thereto in such Party’s possession or proceeding and that Barberry shall be liable for under such Party’s control (or in the entire amount possession or control of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (iits Representatives) Barberry’s counsel as is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted requested by the Indemnified Person in good faith controlling Party or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofits counsel.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, claim (or the commencement of any suit, action or proceeding, ) by any unaffiliated Person not a party hereto (other than by a “Third Party Claim”Governmental Body with respect to Taxes, which shall be governed by Section 8.10(c)) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VIII except to the extent (if any) that Barberry the Indemnifying Person shall have been actually prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (i) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (aii) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person’s delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 8.02, 8.03 or 8.04 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (ia) Barberrythe Indemnifying Person shall provide written evidence reasonably satisfactory to the Indemnified Person demonstrating that the Indemnifying Person has a sufficient amount of financial resources to vigorously defend such matter, (b) the Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, Person and (iic) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding; provided, further, that the Indemnifying Person shall not have the right to assume the defense of any claim, suit, action or proceeding involving criminal liability or in which any relief other than monetary damages is sought against the Indemnified Person or that could otherwise have an adverse impact on the Buyer, its Affiliates or their businesses. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. (i) The Indemnified Person indemnified party shall give notice to the indemnifying party, as promptly as is reasonably practicable to Barberry practicable, of the assertion of any claim, claim or the commencement of any suit, action proceeding or proceeding, investigation by any Person not a party hereto (a “Third Third-Party Claim”) in respect of which indemnity may be sought under this Agreement, which notice shall contain reasonable details concerning such Third-Party Claim; provided that the failure of the Indemnified Person indemnified party to promptly give notice shall not relieve Barberry the indemnifying party of its obligations under this ARTICLE 9, except to the extent (if any) that Barberry the indemnifying party shall have been prejudiced thereby. Barberry . (ii) The indemnifying party may, at its own expense, (A) participate in the defense of any Third such Third-Party Claim, suit, action or proceeding Claim and (aB) upon written notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, indemnified party assume the defense thereof; provided, however, provided that (i1) Barberrythe indemnifying party shall provide written evidence reasonably satisfactory to the indemnified party demonstrating that the indemnifying party has a sufficient amount of assets for purposes of such assumption of defense, (2) the indemnifying party’s counsel is reasonably satisfactory to the Indemnified Person, indemnified party and (ii3) Barberry the indemnifying party shall thereafter consult with the Indemnified Person indemnified party upon the Indemnified Personindemnified party’s reasonable request for such consultation from time to time with respect to such Third Third-Party Claim, suit, action or proceeding. . (iii) If Barberry the indemnifying party assumes such defense, the Indemnified Person indemnified party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, counsel (at its own cost and expense, ) separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofindemnifying party.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 9.5(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is materially prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim and (ii) upon written notice delivered to the Indemnified Person within ten (10) Business Days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person; provided, however, that as a condition precedent to the Indemnifying Person’s right to assume control of such defense, it must first: (A) enter into an agreement with the Indemnified Person (in form and substance reasonably satisfactory to the Indemnified Person) pursuant to which the Indemnifying Person agrees to be fully responsible for, and to provide full indemnification to the Indemnified Person for, all Losses relating to such Third Party Claim; and (B) furnish the Indemnified Person with evidence reasonably satisfactory to the Indemnified Person that the Indemnifying Person is and will be able to fully satisfy such Liability; and provided further, however, that the Indemnifying Person shall not have the right to assume control of the defense of such Third Party Claim, and shall pay the fees and expenses of counsel retained by the Indemnified Person, if (1) such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Proceeding, (2) the Indemnified Person reasonably believes an adverse determination with respect to such Third Party Claim would be detrimental to or injure the reputation or future business prospects of the Indemnified Person or any of its Affiliates, (3) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicts of interest between them, (4) either Seller is the Indemnifying Person and such Third Party Claim seeks money damages in excess of the then-remaining portion of the Holdback Shares, (5) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or (6) either Seller is the Indemnifying Person and the Indemnified Person reasonably believes the defense of such Third Party Claim would adversely affect the Indemnified Person’s relationship with any of its customers, suppliers, or other business relationships. (c) If the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing or (ii) the Indemnified Person has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person and the Indemnified Person. (d) Regardless of which Party controls the defense of any Third Party Claim, suitthe Parties shall, action and shall cause their respective Affiliates to, cooperate in the defense or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out prosecution of such Third Party Claim, suitincluding by providing or making available to the controlling Party all witnesses, action pertinent records, materials, and information relating thereto in such Party’s possession or proceeding and that Barberry shall be liable for under such Party’s control (or in the entire amount possession or control of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (iits Representatives) Barberry’s counsel as is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted requested by the Indemnified Person in good faith controlling Party or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofits counsel.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person (and, if the claim is pursuant to Section 12.3, the Escrow Agent) of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XII, except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, expense (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding, and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 12.2, 12.3 or 12.4 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, provided that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XIII except to the extent (if any) that Barberry the Indemnifying Person shall have been actually prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon the Indemnifying Person's delivery by Barberry to the Indemnified Person of a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 13.2 or 13.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, Person and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The (a) Except with respect to Environmental Claims as provided under §6.5 below, a Party entitled to Indemnification under this Agreement (an “Indemnified Person Party”) shall give notice as promptly as is reasonably practicable to Barberry the appropriate Party required to provide indemnification under this Agreement (an “ Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceedingProceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person Party to promptly give notice shall not relieve Barberry the Indemnifying Party of its obligations under this §6 except to the extent (if any) that Barberry the Indemnifying Party shall have been prejudiced thereby. Barberry The Indemnifying Party may, at its own expense, expense (a) participate in the defense of any Third Party Claim, suit, action or proceeding Proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceedingProceeding, assume the defense thereof; provided, however, provided that (i) Barberrythe Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified PersonParty, and (ii) Barberry the Indemnifying Party shall thereafter consult with the Indemnified Person Party upon the Indemnified PersonParty’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceedingProceeding. If Barberry the Indemnifying Party assumes such defense, the Indemnified Person Party shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Party. If, however, the Indemnified Person Party reasonably determines in its judgment that representation by Barberrythe Indemnifying Party’s counsel of both Barberry the Indemnifying Party and the Indemnified Person Party would present such counsel with a conflict of interest, and either the Indemnified Party or its counsel sets forth the basis for such conflict of interest in writing and delivers the same to the Indemnifying Party or its counsel, then such Indemnified Person Party may employ separate counsel to represent or defend it in any such Third Proceeding and the Indemnifying Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Party chooses to defend or prosecute any such Third Party Claim, suit, action or proceedingProceeding, all of the parties hereto Parties shall cooperate in the defense or prosecution thereof. (b) Any settlement or compromise made or caused to be made by the Indemnified Party or the Indemnifying Party, as the case may be, of any such Proceeding of the Indemnifying Party referred to in Section 6.4 shall also be binding upon the Indemnifying Party or the Indemnified Party, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise; provided that no obligation, restriction or Liability shall be imposed on the Indemnified Party as a result of such settlement without its prior written consent. The Indemnified Party shall give the Indemnifying Party at least 30 days’ notice of any proposed settlement or compromise of any Proceeding it is defending, during which time the Indemnifying Party may reject such proposed settlement or compromise; provided that from and after such rejection, the Indemnifying Party shall be obligated to assume the defense of and full and complete liability and responsibility for such Proceeding and any and all Liabilities in connection therewith in excess of the amount of unindemnifiable Liabilities which the Indemnified Party would have been obligated to pay under the proposed settlement or compromise. (c) In the event that the Indemnifying Party does not elect to assume the defense of any Proceeding, then any failure of the Indemnified Party to defend or to participate in the defense of any such Proceeding or to cause the same to be done, shall not relieve the Indemnifying Party of its obligations hereunder.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article X except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 10.2 or 10.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, Person and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof. Settlement or Compromise. Any settlement or compromise made or caused to be made by the Indemnified Person or the Indemnifying Person, as the case may be, of any such claim, suit, action or proceeding of the kind referred to in Section 10.5 shall also be binding upon the Indemnifying Person or the Indemnified Person, as the case may be, in the same manner as if a final judgment or decree had been entered by a court of competent jurisdiction in the amount of such settlement or compromise; provided, that no obligation, restriction or Loss shall be imposed on the Indemnified Person as a result of such settlement without its prior written consent. The Indemnified Person will give the Indemnifying Person at least thirty (30) days' notice of any proposed settlement or compromise of any claim, suit, action or proceeding referred to in Section 10.5 that it is defending, during which time the Indemnifying Person may reject such proposed settlement or compromise; provided, that from and after such rejection, the Indemnifying Person shall be obligated to assume the defense of and full and complete liability and responsibility for such claim, suit, action or proceeding and any and all Losses in connection therewith in excess of the amount of unindemnifiable Losses which the Indemnified Person would have been obligated to pay under the proposed settlement or compromise.

Notice of Third Party Claims; Assumption of Defense. (a) The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person within fifteen (15) days of the assertion of any claim, or the commencement of any suit, action or proceedingProceeding, by any Person not a party hereto (such claim, suit, action or Proceeding, as it pertains to the Indemnified Person, a “Third Party Claim”) in respect of which indemnity may be sought under this AgreementAgreement (which notice shall specify in reasonable detail the nature and amount (to the extent known by the Indemnified Person) of such claim together with such information (to the extent known by the Indemnified Person) as may be necessary for the Indemnifying Person to determine that the limitations in Section 12.4 have been satisfied or do not apply); provided that provided, that, the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XII except to the extent (if any) that Barberry shall have the Indemnifying Person demonstrates that it has been prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, participate defend the Indemnified Person against the Third Party Claim with counsel of its own choice reasonably satisfactory to the Indemnified Person so long as (i) the Indemnifying Person notifies the Indemnified Person in writing, within fifteen (15) days after the defense Indemnified Person has given notice of any the Third Party Claim, suit, action or proceeding (a) upon notice to that the Indemnifying Person will indemnify the Indemnified Person from and (b) upon delivery by Barberry to against any Losses the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses may suffer resulting from, or arising out of such Third Party Claim (whether or not otherwise required hereunder), (ii) the Indemnifying Person possesses financial resources that would reasonably be expected to be sufficient to defend against the Third Party Claim and to fulfill its indemnification obligations hereunder, (iii) the Third Party Claim does not seek an injunction or other equitable relief that would adversely impact the Access Business, if granted, (iv) the Third Party Claim does not relate to or arise in connection with any criminal action, indictment, allegation, investigation or Proceeding, (v) the Table of Contents Third Party Claim does not relate to or arise in connection with any action, allegation, investigation or Proceeding involving (A) Transferred Intellectual Property or (B) other Intellectual Property licensed to the Purchaser or any of its Affiliates under the Cross License Agreement or either Sublicense if the Purchaser’s (or its Affiliate’s) operation of the Access Business is the primary focus of such Third Party Claim, suit(vi) settlement of, action or proceeding an adverse judgment with respect to, the Third Party Claim would not reasonably be likely to establish a precedential custom or practice that would reasonably be expected to be materially adverse to the continuing business interests of the Indemnified Person or its Affiliates, (vii) the Indemnified Person has not been advised in writing by counsel reasonably acceptable to the Indemnifying Person that, based on the defenses and positions expected to be asserted as of the time of such advice, a conflict of interest between the Indemnified Person and the Indemnifying Person exists or would reasonably be expected to exist or arise in connection with such Third Party Claim and (viii) the Indemnifying Person conducts the defense of the Third Party Claim with substantially the same amount of diligence as the Indemnifying Person would, acting with a reasonable degree of prudence, exert in defending a comparable claim against itself; provided, that, notwithstanding the foregoing, the Seller shall in all cases be entitled to retain the defense of (1) any Third Party Claim pending on the date hereof that Barberry is a Retained Obligation and (2) so long as the foregoing clauses (ii), (iv), (vii) and (viii) are satisfied, (x) any Third Party Claim relating to or arising in connection with any action, allegation, investigation or Proceeding involving Intellectual Property licensed to the Purchaser or any of its Affiliates under the Cross License Agreement or either Sublicense (other than Third Party Claims of the type described in the foregoing clause (v)(B)) and (y) any claims described in Section 12.2(g). If the Indemnified Person assumes the defense of the Third Party Claim pursuant to the previous sentence, the Indemnifying Person shall have the right to consult with the Indemnified Person regarding the counsel used by the Indemnified Person in connection with such defense. (c) So long as the Indemnifying Person is conducting the defense of the Third Party Claim in accordance with Section 12.7(b) above, (i) the Indemnified Person may, at its election, retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (ii) the Indemnified Person will not consent to the entry of any judgment or enter into any settlement or compromise with respect to the Third Party Claim without the prior written consent of the Indemnifying Person (which consent shall not be liable unreasonably withheld or delayed), (iii) the Indemnifying Person will not consent to the entry of any judgment or enter into any settlement or compromise with respect to the Third Party Claim unless either (A) the Indemnifying Person obtains a written agreement releasing the Indemnified Person from all Loss and Liability thereunder, (B) the settlement agreement entered into in connection therewith includes a written agreement releasing the Indemnified Person from all Loss and Liability thereunder or (C) the Indemnifying Person obtains the written consent of the Indemnified Person (which consent shall not be unreasonably withheld or delayed) and (iv) if the Third Party Claim relates to or arises in connection with any action, allegation, investigation or Proceeding involving Intellectual Property licensed to the Purchaser or any of its Affiliates under the Cross License Agreement or either Sublicense, the Indemnifying Person shall defend any such Third Party Claim with a view only to the interest of the Purchaser and its Affiliates (it being understood and agreed that use of the Table of Contents same counsel for the entire amount Purchaser Indemnified Parties and the Indemnifying Parties will not, in and of any Lossitself, be deemed to result in a conclusion that the Indemnifying Party is not acting with a view only to the interest of the Purchaser and its Affiliates) and shall consult with the Purchaser at any time during all reasonable times as may be reasonably requested by the course Purchaser concerning matters specified by the Purchaser related to the defense of any such Third Party Claim, suit, action . (d) In the event any of the conditions in Section 12.7(b) above is or proceeding, assume the defense thereof; providedbecomes unsatisfied, however, that (i) Barberry’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in may assume and control the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuantand may consent to the entry of any judgment or enter into any settlement or compromise with respect thereto (subject to the prior consent of the Indemnifying Person, which consent shall not be unreasonably withheld or if Barberry gives delayed), (ii) the Indemnifying Person may participate in such notice but fails defense at its sole cost and expense and will, subject to prosecute vigorously the terms and diligently conditions of Article XII, reimburse the Indemnified Person for the fees, costs and expenses of defending against the Third Party Claim (including reasonable attorneys’ fees and expenses) and (iii) the Indemnifying Person will remain responsible for any Losses the Indemnified Person may suffer resulting from or settle arising out of the Third Party Claim, then subject to the Indemnified Party will have applicable limitations provided in this Article XII. (e) Whether or not the right to defend, at Indemnifying Person assumes the sole cost and expense defense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. (a) The Indemnified Person shall give written notice as promptly as is reasonably practicable to Barberry the Indemnifying Person with reasonable promptness after receiving notice of the assertion of any claimclaim in writing, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this AgreementAgreement (a “Third Party Claim”); provided provided, however, that the failure of the Indemnified Person to promptly give prompt written notice shall not relieve Barberry the Indemnifying Person of its indemnification obligations except to the extent that such failure (if anyi) prejudices the Indemnifying Person’s ability to successfully defend such Third Party Claim or (ii) increases the Indemnified Person’s liability for such Third Party Claim. Such notice shall, to the extent such information is reasonably available, specify in reasonable detail the nature and amount of the Third Party Claim together with such information as may be necessary for the Indemnifying Person to determine that Barberry the limitations in Section 10.4 have been or are reasonably likely to be satisfied or do not apply. (b) The Indemnifying Person shall have been prejudiced thereby. Barberry may, at its own expense, participate in fifteen (15) days after receipt of such notice to notify the Indemnified Person if the Indemnifying Person has elected to assume the defense of any such Third Party Claim, suit, action or proceeding (a) upon notice . If the Indemnifying Person elects to assume the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out defense of such Third Party Claim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for entitled at its own expense to conduct and control the entire amount defense and settlement of any Loss, at any time during the course of any such Third Party ClaimClaim through counsel of its own choosing, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s counsel is reasonably satisfactory subject to the Indemnified Person, and (ii) Barberry shall thereafter consult with approval of the Indemnified Person upon (such approval not to be unreasonably withheld or delayed); provided that the Indemnified Person may participate in the defense of such Third Party Claim with its own counsel at its own expense. If the Indemnifying Person fails to notify the Indemnified Person within fifteen (15) days after receipt of the Indemnified Person’s reasonable request for such consultation from time to time with respect to such notice of a Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have be entitled to assume the right (but defense of such Third Party Claim at the expense of the Indemnifying Person, provided that the Indemnified Person may not settle any Third Party Claim without the duty) consent of the Indemnifying Person, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing provisions, the Indemnified Person shall be entitled to participate in the defense thereof of such Third Party Claim and to employ counselcounsel of its choice at the Indemnifying Person' expense if (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing, at its own expense, separate from or (ii) the counsel employed by Barberry. If, however, named parties to any such Third Party Claim (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and the Indemnified Person reasonably determines believes that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Person (other than differing interests associated with the Indemnifying Person’s' obligation to indemnify), in its judgment that representation by Barberry’s which cases the reasonable fees and expenses of one counsel of both Barberry and representing the Indemnified Person would present such counsel with shall be paid by the Indemnifying Person on a conflict of interest, then such Indemnified current basis. Whether or not the Indemnifying Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires chooses to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this AgreementAgreement (which notice shall specify in reasonable detail the nature and amount of such claim together with such information as may be necessary for the Indemnifying Person to determine that the limitations in Section 6.11 have been satisfied or do not apply); provided provided, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VI except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry mayThe Indemnifying Person will have the right, upon written notice delivered to the Indemnified Person within ten (10) days thereafter to assume the defense of such claim at its own expense, participate in . In the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; providedevent, however, that (i) Barberry’s counsel is reasonably satisfactory the Indemnifying Person declines or fails to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in assume the defense thereof and to employ counsel, at its own expense, separate from of such claim on the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present terms provided within such counsel with a conflict of interestten (10)-day period, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimaction or proceeding; provided, action, suit or proceeding and Barberry shall pay all of the that any reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify counsel incurred by the Indemnified Party that Barberry desires to defend Person will be paid by the Third Party Claim pursuant, Indemnifying Person as part of any Damages incurred or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then suffered by the Indemnified Party Person resulting from such claim. Regarding any claim for which the Indemnifying Person has assumed the defense, the Indemnified Person will have the right to defend, participate in such matter and to retain its own counsel. Such counsel’s reasonable fees and costs shall be at the sole cost Indemnified Person’s expense in the event the Indemnifying Person is successful in defending the underlying action and at the Indemnifying Person’s expense of Barberryin the event the Indemnifying Person is unsuccessful in defending such action. In the event the Indemnifying Person is only partly successful or unsuccessful, as the case may be, in defending such third party claim, the Third Party Claim by all appropriate proceedings, which proceedings will reasonable fees and costs shall be prosecuted by divided between the Indemnifying Person and the Indemnified Person on a pro rata basis (applying Section 92 para.1 sentence 1 last part German Civil Code of Procedure (ZPO) mutatis mutandis). The Indemnifying Person will at all times use reasonable efforts to keep the Indemnified Person reasonably apprised of the status of the defense of any matter the defense of which the Indemnifying Person has assumed and to cooperate in good faith or will be settled at the discretion of with the Indemnified Person (with respect to the defense of any such matter. To the extent the Indemnifying Person shall control or participate in the defense or settlement of any third party claim or demand, the Indemnified Person will give to the Indemnifying Person and its counsel reasonable access to all business records and other documents relevant to such defense or settlement, and shall permit them to consult with the consent employees and counsel of Barberry, which consent will not be unreasonably withheld)the Indemnifying Person. The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate use its reasonable best efforts in the defense or prosecution thereofof all such claims.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry Arnos of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry Arnos of its obligations except to the extent (if any) that Barberry Arnos shall have been prejudiced thereby. Barberry Arnos may, at its own expense, participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry Arnos to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry Arnos shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) BarberryArnos’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry Arnos shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry Arnos assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by BarberryArnos. If, however, the Indemnified Person reasonably determines in its judgment that representation by BarberryArnos’s counsel of both Barberry Arnos and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry Arnos shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry Arnos fails to promptly notify the Indemnified Party that Barberry Arnos desires to defend the Third Party Claim pursuant, or if Barberry Arnos gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of BarberryArnos, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of BarberryArnos, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry Arnos chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified --------------------------------------------------- Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person (and, if the Indemnified Person is a Purchaser Indemnified Party and the Escrow continues to be held by the Escrow Agent, the Escrow Agent) of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its indemnification obligations under this Agreement except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification hereunder for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give given notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (extent, if any) , that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (right, but not the duty) , to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable after receiving notice thereof, to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceedingProceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided Agreement (which notice shall, to the extent such information is reasonably available, specify in reasonable detail the nature and amount of such claim together with such information as may be necessary for the Indemnifying Person to determine that the failure limitations in Section 10.3 have been satisfied or do not apply). Failure of the Indemnified Person to promptly give the Indemnifying Person notice as provided herein shall not relieve Barberry the Indemnifying Person of any of its obligations hereunder, except to the extent (if any) that Barberry shall have been the Indemnifying Person is actually prejudiced therebyby such failure. Barberry The Indemnifying Person may, at its own expense, (i) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding proceeding, or (aii) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceedingProceeding, assume the defense thereofthereof with counsel reasonably acceptable to the Indemnified Person and shall thereafter keep the Indemnified Person reasonably informed with respect thereto; provided, however, that the Indemnifying Person shall not be entitled to assume the defense of any claim if (iA) Barberry’s counsel is reasonably satisfactory to such claim primarily seeks an injunction or equitable relief against the Indemnified Person, and (iiB) Barberry shall thereafter consult with to the extent the Indemnified Person upon has been advised by counsel in writing (with a copy provided to the Indemnifying Person) that a conflict exists between the Indemnified Person’s reasonable request for Person and the Indemnifying Person in connection with the defense of the third party claim, (C) the third party claim consists of a criminal Proceeding or regulatory Proceeding or (D) the amount of such consultation from time to time claim, together with respect to such Third Party Claimthe amount of all then pending claims, suit, action or proceedingexceeds the then remaining balance of the Escrow Funds. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Person. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceedingProceeding, all of the parties hereto Parties shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable practicable, but in any event no later than five (5) Business Days after receiving notice thereof, to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this AgreementAgreement (which notice shall specify in reasonable detail the nature and amount of such claim together with such information as may be necessary for the Indemnifying Person to determine that the limitations in SECTION 10.4 have been satisfied or do not apply); provided PROVIDED, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this ARTICLE X except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry shall be liable for (b) upon notice to the entire amount of any LossIndemnified Person, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; providedthereof with counsel of its own choice and in the event of such assumption, howevershall have the exclusive right, that subject to CLAUSE (i) Barberry’s counsel is reasonably satisfactory of SECTION 10.7, to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for settle or compromise such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. Ifthe Indemnifying Person, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it will refrain from making any public announcements in any respect of such Third Party Claimclaim, actionsuit, suit action or proceeding and Barberry shall pay all or otherwise communicating with the news media without the prior consent of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Person. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof. Notwithstanding anything to the contrary set forth in this Agreement, Sellers shall continue to control the defense of the Venezuelan Arbitration and the prosecution of the Peruvian Arbitration in all respects following the applicable Closing with respect to the Venezuelan Arbitration Entities and the Peruvian Acquired Companies.

Notice of Third Party Claims; Assumption of Defense. The ----------------------------------------------------------------- Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person (and, if the Indemnified Person is a Purchaser Indemnified Party and the Escrow continues to be held by the Escrow Agent, the Escrow Agent) of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Governmental Authority or any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article 13 except ---------- to the extent (if any) that Barberry the Indemnifying Person shall have been actually prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 5.11, 13.2 or 13.3 for all Losses arising ------------ ---- ---- out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, provided that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 9.5(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is materially prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim, suit, action or proceeding Claim and (aii) upon written notice delivered to the Indemnified Person within fifteen (15) Business Days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person and (b) upon delivery by Barberry furnish the Indemnified Person with evidence reasonably satisfactory to the Indemnified Person a written agreement that the Indemnified Indemnifying Person is entitled and will be able to indemnification for all Losses arising out fully satisfy such Liability; and, provided, however, that the Indemnifying Person shall not have the right to assume control of the defense of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for pay the entire amount fees and expenses of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s counsel is reasonably satisfactory to retained by the Indemnified Person, and if (ii1) Barberry shall thereafter consult such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Proceeding, (2) the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time reasonably believes an adverse determination with respect to such Third Party Claim would be detrimental to or injure the reputation or future business prospects of the Indemnified Person or any of its Affiliates, (3) the Indemnified Person reasonably believes that the Indemnifying Person does not have the financial resources to defend the Third Party Claim, suit(4) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicts of interest between them, action (5) Seller is the Indemnifying Person and such Third Party Claim seeks money damages in excess of the then-remaining portion of the Indemnity Escrow Fund (less the then remaining portion of the Indemnity Escrow Fund deposited into such fund pursuant to the Stock Purchase Agreement by and among Seller, Purchaser, Sierra Mountain, and a wholly-owned Subsidiary of Purchaser on the date of this Agreement), the Holdback Shares, (6) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or proceeding. (7) Seller is the Indemnifying Person and the Indemnified Person reasonably believes the defense of such Third Party Claim would adversely affect the Indemnified Person’s relationship with any of its customers, suppliers, or other business relationships. (c) If Barberry assumes the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing or (ii) the Indemnified Person has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person and the Indemnified Person. (d) If the Indemnifying Person is not entitled to assume the defense of such Third Party Claim or does not give written notice to the Indemnified Person within fifteen (15) Business Days after receipt of the Claims Notice that the Indemnifying Person has elected to assume the defense of such Third Party Claim or if an appropriate court rules that the Indemnifying Person failed or is failing to vigorously prosecute or defend such Third Party Claim or shall withdraw from such defense, the Indemnified Person shall have the right (but not the duty) to participate in undertake the defense thereof and to employ counselor settlement thereof, at its own the Indemnifying Person’s expense, separate from . If the counsel employed by Barberry. If, howeverIndemnified Person controls the defense of any Third Party Claim pursuant to this Section 9.6(d), the Indemnified Person reasonably determines in its shall keep the Indemnifying Person timely apprised of the status of such Third Party Claim, and, if such Indemnified Person proposes to settle such Third Party Claim prior to a final judgment that representation by Barberry’s counsel of both Barberry thereon or to forgo any appeal with respect thereto, then the Indemnified Person shall give the Indemnifying Person prompt written notice thereof, and the Indemnified Person would present shall not settle such counsel with a conflict Third Party Claim without the prior written consent of interest, then such the Indemnifying Person (which shall not be unreasonably delayed or withheld). If an Indemnified Person may employ separate counsel to represent or defend it in controls any such Third Party Claim, action, suit the Indemnifying Person shall be entitled to participate in the defense or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention handling of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously with its own counsel and diligently or settle at its own expense. (e) Regardless of which Party controls the defense of any Third Party Claim, then the Indemnified Party will have the right to defendParties shall, at the sole cost and expense of Barberryshall cause their respective Affiliates to, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofof such Third Party Claim, including by providing or making available to the controlling Party all witnesses, pertinent records, materials, and information relating thereto in such Party’s possession or under such Party’s control (or in the possession or control of any of its Representatives) as is reasonably requested by the controlling Party or its counsel.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Indemnitee shall give written notice as promptly as is reasonably practicable to Barberry the Indemnitor of the assertion of any claim, claim or the commencement of any suit, action proceeding or proceeding, investigation by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement, which written notice shall contain reasonable details concerning such Third Party Claim; provided provided, that the failure of the Indemnified Person Indemnitee to promptly give written notice shall not relieve Barberry the Indemnitor of its obligations under this Article IX except to the extent (if any) that Barberry the Indemnitor shall have been prejudiced thereby. Barberry The Indemnitor may, at its own expense, (i) participate in the defense of any such Third Party Claim, suit, action or proceeding Claim and (aii) upon written notice to the Indemnified Person Indemnitee and (b) upon delivery by Barberry the Indemnitor’s delivering to the Indemnified Person Indemnitee a written agreement that the Indemnified Person Indemnitee is entitled to indemnification pursuant to Sections 9.2 or 9.3 for all Losses arising out of such Third Party Claim, suit, action or proceeding Claim and that Barberry the Indemnitor shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claim, suit, action or proceeding, Claim assume the defense thereof; provided, however, that in the case of a Third Party Claim that involves a claim by a Government Entity, the Indemnitor may not assume the defense of such Third Party Claim except with the consent of the Indemnitee; and provided, that (iA) Barberrythe Indemnitor shall provide written evidence reasonably satisfactory to the Indemnitee demonstrating that the Indemnitor has a sufficient amount of assets for purposes of such assumption of defense and for satisfaction of any settlement or judgment in respect of such Third Party Claim, (B) the Indemnitor’s counsel is reasonably satisfactory to the Indemnified Person, Indemnitee and (iiC) Barberry the Indemnitor shall thereafter consult with the Indemnified Person Indemnitee upon the Indemnified PersonIndemnitee’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry the Indemnitor assumes such defense, the Indemnified Person Indemnitee shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own cost and expense, separate from the counsel employed by Barberrythe Indemnitor. If, however, the Indemnified Person Indemnitee reasonably determines in its judgment that representation by Barberrythe Indemnitor’s counsel of both Barberry the Indemnitor and the Indemnified Person Indemnitee would present such counsel with a conflict of interest, then such Indemnified Person Indemnitee may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding Claim and Barberry the Indemnitor shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnitor chooses to defend or prosecute contest any such Third Party Claim, suit, action or proceeding, all upon the request of the parties hereto Indemnitee, the other party shall cooperate in provide reasonable cooperation to the defense or prosecution thereofIndemnitee with respect thereto.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (and not a “Third Purchaser Indemnified Party Claim”or a Stockholder Indemnified Party) in respect of for which indemnity may be sought under this Agreement; provided Article X. Such notice shall specify (in reasonable detail in light of the circumstances then existing) the facts alleged to constitute the basis for such claim, the representations, warranties, covenants and obligations alleged to have been breached and the amount (to the extent then determinable) that the failure of the Indemnified Person seeks to promptly give notice shall not relieve Barberry of its obligations except recover hereunder from the Indemnifying Person, together with such other information as may be reasonably necessary for the Indemnifying Party to determine that the extent (if any) that Barberry shall limitations contained in this Article X, have been prejudiced therebysatisfied or do not apply. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) assume the defense thereof upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that (i) the Indemnified Person is entitled to indemnification pursuant to and subject to the provisions of this Article X for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry (ii) the Indemnifying Person shall be liable for the entire amount of any such Loss, at any time during subject to the course provisions of this Article X. In the event the Indemnifying Person assumes the defense of any such Third Party Claimclaim, suit, action or proceeding, assume (y) the defense thereof; provided, however, that (i) Barberry’s Indemnifying Person's counsel is shall be reasonably satisfactory to the Indemnified Person, Person and (iiz) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. proceeding If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the reasonable -52- 60 fees and disbursements in connection with the retention expenses of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate and reasonably assist in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under Section 5.3 or this Article 9 except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person’s delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 5.3, 9.2 or 9.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberrythe Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided PROVIDED that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this ARTICLE X except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to SECTION 10.2 or 10.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; providedPROVIDED, howeverHOWEVER, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Each indemnified party shall give reasonably prompt notice as promptly as is reasonably practicable of a claim ("Claims Notice") to Barberry each indemnifying party, in accordance with the terms of Section 13.3 below, of the assertion of any claim, or the commencement of any suit, action or proceeding, proceeding by any Person not a third-party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreementhereunder, and shall give the indemnifying parties such information with respect thereto as the indemnifying parties may reasonably request. The giving of such Claims Notice shall not be a condition precedent to indemnification hereunder; provided provided, however, that the failure of the Indemnified Person to promptly give reasonably prompt notice shall not relieve Barberry of its obligations except reduce the indemnified party's recovery from the indemnifying party only by an amount equal to the extent Losses (if anyincluding attorney's fees) that Barberry shall have been prejudiced therebycaused by such delay. Barberry Upon receipt of such notice, each indemnifying party may, at its own expense, participate in and, upon notice to each indemnified party of such indemnifying party's written agreement that the defense indemnified party is entitled to indemnification pursuant to this Article XI for Losses arising out of any Third Party Claimsuch third-party claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the indemnifying party's counsel is reasonably satisfactory to the Indemnified Personindemnified party, and (ii) Barberry the indemnifying party shall thereafter consult with the Indemnified Person indemnified party upon the Indemnified Person’s indemnified party's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceedingproceeding and (iii) the indemnified party shall not be required to permit the indemnifying party to assume the defense of any third-party claim which if not first paid, discharged or otherwise complied with would result in an imminent, material interruption or cessation of the conduct of the business of such indemnified party or any material part thereof. If Barberry the indemnifying party assumes such defense, the Indemnified Person indemnified party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofindemnifying party. Whether or not Barberry the indemnifying party chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Persons of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided provided, however that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Persons of its their obligations under this Section 7.4, except to the extent (if any) that Barberry the Indemnifying Persons shall have been prejudiced thereby. Barberry The Indemnifying Persons may, at its their own expense, participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, however that (i) Barberry’s the Indemnifying Persons' counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Persons shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry assumes the Indemnifying Persons assume such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate as counsel of record in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Persons. If, however, the Indemnified Person Persons reasonably determines determine in its their judgment that representation by Barberry’s the Indemnifying Persons' counsel of both Barberry the Indemnifying Persons and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Persons shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses the Indemnifying Persons choose to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Party shall give notice as promptly as is reasonably practicable practicable, but in any event no later than five Business Days after receiving notice thereof, to Barberry the Indemnifying Party of the assertion of any claim, or the commencement of any suit, action or proceedingAction, by any Person not a party hereto (a “Third an Indemnified Party Claim”) hereunder in respect of which indemnity may be sought under this Agreement, which notice shall specify in reasonable detail the nature and amount of such claim, together with such information as may be necessary for the Indemnifying Party to determine that the limitations in Section 11.4 have been satisfied or do not apply; provided provided, however, that the failure of the Indemnified Person Party to promptly give such notice shall not relieve Barberry constitute a waiver of its obligations such Indemnified Party’s rights and remedies under this Article 11 except to the extent (if any) that Barberry the Indemnifying Party shall have been actually prejudiced thereby. Barberry Provided that the Indemnifying Party acknowledges its obligation to indemnify pursuant to Section 11.2 or Section 11.3, as the case may be, the Indemnifying Party may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim or Action, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any LossParty, at any time during the course of any such Third Party Claim, suit, action claim or proceedingAction, assume and control the defense thereof; providedthereof with counsel of its own choice and, howeverin the event of such assumption, that (i) Barberry’s counsel is reasonably satisfactory shall have the exclusive right, subject to the Indemnified PersonSection 11.7, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for to settle or compromise such consultation from time to time with respect to such Third Party Claim, suit, action claim or proceedingAction. If Barberry the Indemnifying Party assumes such defense, the Indemnified Person Party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Party. Whether or not Barberry the Indemnifying Party chooses to defend or prosecute any such Third Party Claim, suit, action claim or proceedingAction, all of the parties Parties hereto shall cooperate in the defense or prosecution thereof. For the avoidance of doubt, the Parties acknowledge and agree that Seller shall have the right to control the defense of, and the sole authority to approve and authorize the filing of pleadings, briefs and other documents on behalf of the Acquired Companies with respect to, the matters which are the subject of clauses (c), (d) and (e) of Section 11.2 (including the Actions set forth on Exhibit 7.1(a)(xii)) (collectively, the “Retained Actions”). All responsibility for and control of the Retained Actions shall transfer to Seller at the Effective Closing Time without further action on the part of the Parties or the Acquired Companies.

Notice of Third Party Claims; Assumption of Defense. The --------------------------------------------------- Indemnified Person shall give written notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XII except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, : (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding; and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 12.2 or Section 12.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that that: (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interestinterest or if the Indemnifying Person's counsel is otherwise not reasonably satisfactory to the Indemnified Person, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article X, except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, expense (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding, and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 10.2 or 10.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, provided that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) obligation), provided such participation does not, in the reasonable determination of the Indemnifying Person, unreasonably interfere with the defense by the Indemnifying Person, to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Person. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Party shall give notice as promptly as is reasonably practicable practicable, but in any event no later than fifteen (15) Business Days after receiving notice thereof, to Barberry the Indemnifying Party of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this AgreementAgreement (which notice shall, to the extent such information is reasonably available, specify in reasonable detail the facts alleged to constitute the basis for such claim, the representations, warranties, covenants and obligations alleged to have been breached and the amount of such claim together with such information as may be necessary for the Indemnifying Party to determine that the limitations in Section 9.4 have been satisfied or do not apply); provided provided, however, that the failure of the Indemnified Person to promptly give notice so notify shall not relieve Barberry the Indemnifying Party of its obligations hereunder, except to the extent (if any) that Barberry shall have been the Indemnifying Party is actually and materially prejudiced thereby. Barberry The Indemnifying Party may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding proceeding, and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s thereof with counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceedingof its own choice. If Barberry the Indemnifying Party assumes such defense, the Indemnified Person Party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Party. Whether or not Barberry the Indemnifying Party chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person’s delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses Damages arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossDamages, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberrythe Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person Each indemnified party shall give reasonably prompt notice as promptly as is reasonably practicable of a claim ("Claims Notice") to Barberry each indemnifying party, in accordance with the terms of Section 14.3 below, of the assertion of any claim, or the commencement of any suit, action or proceeding, proceeding by any Person not a third party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreementhereunder, and shall give the indemnifying parties such information with respect thereto as the indemnifying parties may reasonably request. The giving of such Claims Notice shall not be a condition precedent to indemnification hereunder; provided provided, however, that the failure of the Indemnified Person to promptly give reasonably prompt notice shall not relieve Barberry of its obligations except reduce the indemnified party's recovery from the indemnifying party only by an amount equal to the extent Losses (if anyincluding attorney's fees) that Barberry shall have been prejudiced therebycaused by such delay. Barberry Upon receipt of such notice, each indemnifying party may, at its own expense, participate in and, upon notice to each indemnified party of such indemnifying party's written agreement that the defense indemnified party is entitled to indemnification pursuant to this Article XII for Losses arising out of any Third Party Claimsuch third party claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the indemnifying party's counsel is reasonably satisfactory to the Indemnified Personindemnified party, and (ii) Barberry the indemnifying party shall thereafter consult with the Indemnified Person indemnified party upon the Indemnified Person’s indemnified party's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceedingproceeding and (iii) the indemnified party shall not be required to permit the indemnifying party to assume the defense of any third party claim which if not first paid, discharged or otherwise complied with would result in an imminent, material interruption or cessation of the conduct of the business of such indemnified party or any material part thereof. If Barberry the indemnifying party assumes such defense, the Indemnified Person indemnified party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofindemnifying party. Whether or not Barberry the indemnifying party chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. (a) The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XIII except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry mayThe notice to be sent by the Indemnified Person to the Indemnifying Person pursuant to this Section 13.6 shall include all information concerning the claim of which the Indemnified Person is aware and which the Indemnified Person, acting reasonably and in good faith, considers to be required by the Indemnifying Person in order for the Indemnifying Person to evaluate such claim and whether such claim gives rise to an indemnification obligation of the Indemnifying Person hereunder. Following receipt of a notice from the Indemnified Person pursuant to this Section 13.6, the Indemnified Person hereunder shall permit the Indemnifying Person, at the Indemnifying Person's election, to assume, at its own expense, participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding with counsel selected by the Indemnifying Person (a) upon notice and not reasonably objected to by the Indemnified Person). Prior to any assumption of the defense of a claim, suit, action or proceeding by the Indemnifying Person, the Indemnified Person and shall not settle, compromise or consent to any judgment in respect of any such claim, suit, action or proceeding without the prior written consent of the Indemnifying Person (which consent shall not be unreasonably withheld or delayed). (b) upon delivery by Barberry Following the Indemnifying Person's election to assume the defense of any claim, action or proceeding pursuant to Section 13.6(a), (i) the Indemnified Person shall deliver to the Indemnifying Person, in a written agreement timely fashion (which shall be no later than fifteen (15) Business Days after the Indemnified Person's receipt of notice of such election), copies of all notices and documents (including court papers) received by the Indemnified Person relating to such claim, action or proceeding and (ii) the Indemnified Person shall use its commercially reasonable efforts to cooperate in the defense or prosecution thereof as reasonably requested by the Indemnifying Person in the context of the relevant claim, action or proceeding (including the quantum and nature of damages sought thereunder). Such cooperation shall include the retention and (upon the Indemnifying Person's request) the provision to the Indemnifying Person of records and information that are reasonably relevant to such claim, action or proceeding, and making a reasonable number of employees reasonably available on a mutually convenient basis, to provide additional information and explanation of any material provided hereunder; provided, however, that the foregoing is organized in a manner as shall not unreasonably disrupt the normal operations of the Indemnified Person's business having regard to the context in which such cooperation is requested and of the relevant claim, action or proceeding (including the quantum and nature of the damages sought thereunder). (c) The Indemnifying Person shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Person for any period during which the Indemnifying Person has not assumed the defense of a claim, action or proceeding for which the Indemnified Person is entitled to indemnification for all Losses arising out hereunder, except to the extent (if any) that the Indemnifying Person shall have been prejudiced by the Indemnified Person's failure to give timely notice of such Third Party Claim, suitclaim, action or proceeding and that Barberry shall be liable for as required by Section 13.5. (d) If the entire amount Indemnifying Person assumes the defense of any Loss, at any time during the course of any such Third Party Claim, suitclaim, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s counsel is reasonably satisfactory proceeding pursuant to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defenseSection 13.6(a), the Indemnified Person shall have the right (but not the duty) to participate in the such defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. Ifthe Indemnifying Person. (e) If the Indemnifying Person does not elect to assume defense of any claim, howeveraction or proceeding pursuant to Section 13.6(a), the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Indemnifying Person may nevertheless participate (but not control) and employ separate its own counsel (not reasonably objected to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person Person), at its expense, in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control defense of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suitclaim, action or proceeding. (f) Each party to this Agreement agrees to use its commercially reasonable efforts to cooperate and cause its employees to cooperate with and assist the appropriate Indemnifying Person and Indemnified Person in connection with any claim, all of the parties hereto shall cooperate action, proceeding or liability for which indemnity is sought hereunder, including, but not limited to claims, actions and proceedings with respect to which an Indemnifying Person has elected to assume or participate in the defense defense, including using its commercially reasonable efforts to mitigate or prosecution thereofresolve any such claim, action, proceeding or liability for which indemnity is sought hereunder; provided, however, that in the event that the Indemnified Person shall fail to use such commercially reasonable efforts to mitigate or resolve any claim, action, proceeding or liability, then notwithstanding anything else to the contrary contained in this Agreement, such failure shall only affect the Indemnified Person's right to indemnification with respect to such claim, action, proceeding or liability to the extent of any Losses that could reasonably be expected to have been avoided if the Indemnified Person had made such commercially reasonable efforts.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry Natco LLC of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry Natco LLC of its obligations except to the extent (if any) that Barberry Natco LLC shall have been prejudiced thereby. Barberry Natco LLC may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding, and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry Natco LLC delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry Natco LLC shall be liable for the entire amount of any Lossloss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s Natco LLC's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry Natco LLC shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry Natco LLC assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by BarberryNatco LLC. If, however, counsel for the Indemnified Person reasonably determines in its judgment that representation by Barberry’s Natco LLC's counsel of both Barberry Natco LLC and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry Natco LLC shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry Natco LLC chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Each Indemnified Person shall give reasonably prompt notice as promptly as is reasonably practicable of a claim ("CLAIMS NOTICE") to Barberry each indemnifying party, in accordance with the terms of Section 11.3, of the assertion of any claim, or the commencement of any suit, action or proceeding, proceeding by any Person not a third party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreementhereunder, and shall give the indemnifying parties such information with respect thereto as the indemnifying parties may reasonably request. The giving of such Claims Notice shall not be a condition precedent to indemnification hereunder; provided provided, however, that the failure of to give reasonably prompt notice shall reduce the Indemnified Person to promptly give notice shall not relieve Barberry of its obligations except Person's recovery from the indemnifying parties only by an amount equal to the extent damages, costs and expenses (including attorneys fees), if any) that Barberry shall have been prejudiced thereby, caused by such delay. Barberry Upon receipt of such notice, each indemnifying party may, at its own expense, (i) participate in the defense of any Third Party Claim, suit, action or proceeding and (aii) upon notice to the each Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a of such indemnifying party's written agreement that the Indemnified Person is entitled to indemnification pursuant to this Article 9 for all Losses arising out of such Third Party Claimthird-party claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Lossproceeding, at any time during the course of any such Third Party Claimclaim, suit, action action, or proceeding, assume the defense thereof; provided, however, that (ix) Barberry’s the indemnifying party's counsel is reasonably satisfactory to the Indemnified Person, and ; (iiy) Barberry the indemnifying party shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceedingproceeding and (z) the Indemnified Person shall not be required to permit the indemnifying party to assume the defense of any third-party claim which if not first paid, discharged, or otherwise complied with would result in an imminent, material interruption or cessation of the conduct of the Indemnified Party's business or any material part thereof. If Barberry the indemnifying party assumes such defense, the Indemnified Person Party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofindemnifying party. Whether or not Barberry the indemnifying party chooses to defend or prosecute any such Third Party Claimclaim, suit, action action, or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable after receiving written notice thereof, to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided , including any claim pursuant to the Settlement Agreement (a “Third Party Claim”) (which notice shall specify in reasonable detail the nature and amount of such claim together with such information as may be necessary for the Indemnifying Person to determine that the limitations in Section 11.4 or 11.5 have been satisfied or do not apply); provided, that failure of to give such notification will not affect the Indemnified Person to promptly give notice shall not relieve Barberry of its obligations indemnification provided hereunder except to the extent (if any) that Barberry shall have the Indemnifying Person’s defense or other rights available to it has been actually prejudiced therebyas a result of such failure. Barberry The Indemnifying Person may, at its own expense, (i) participate in the defense of any Third Party Claim, suit, action or proceeding Claim and (aii) upon written notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person’s delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding Claim and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claim, suit, action or proceeding, Claim assume the defense thereof; provided, however, that (iA) Barberrythe Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, Person and (iiB) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim; provided, suitfurther, action that if such Third Party Claim involves a claim by a Government Entity, the Purchaser Indemnified Party may elect to control the defense or proceedingsettlement of such claim, at the Indemnifying Person’s expense. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own cost and expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment (i) based on an opinion of counsel that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would be reasonably likely to present such counsel with a conflict of interestinterest or (ii) there is a reasonable probability that such claim may adversely affect it or its Affiliates in any material respect (other than with respect to the payment of money damages in an amount that does not exceed the respective caps set forth in Section 11.4 or Section 11.5), then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding Claim and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails The parties hereto agree to promptly notify cooperate fully with each other in connection with the Indemnified Party that Barberry desires to defend the Third Party Claim pursuantdefense, negotiation or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the settlement of any Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VII except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, : (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding; and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 7.2 or Section 7.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that that: (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 11.5(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is materially prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim and (ii) upon written notice delivered to the Indemnified Person within thirty (30) days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person; provided, however, that the Indemnifying Person will not have the right to assume control of the defense of such Third Party Claim, and shall pay the fees and expenses of counsel retained by the Indemnified Person, if (A) such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Proceeding, (B) the Indemnified Person reasonably believes an adverse determination with respect to such Third Party Claim would be detrimental to or injure the reputation or future business prospects of the Indemnified Person or any of its Affiliates, (C) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicts of interests between them, (D) Sellers are the Indemnifying Person and such Third Party Claim seeks money damages in excess of the funds then remaining in the Indemnity Escrow Account, (E) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or (F) Sellers are the Indemnifying Person and Indemnified Person reasonably believes the defense of such Third Party Claim could materially adversely affect the Indemnified Person’s relationship with any of its customers, suppliers, or other business relationships. (c) If the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, then the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing or (ii) the Indemnified Person has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person and the Indemnified Person. (d) Regardless of which Party controls the defense of any Third Party Claim, suitthe Parties shall, action and shall cause their respective Affiliates to, reasonably cooperate in the defense or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out prosecution of such Third Party Claim, suitincluding by providing or making available to the controlling Party all witnesses, action pertinent records, materials, and information relating thereto in such Party’s possession or proceeding and that Barberry shall be liable for under such Party’s control (or in the entire amount possession or control of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (iits Representatives) Barberry’s counsel as is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted requested by the Indemnified Person in good faith controlling Party or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofits counsel.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a ““ Third Party ClaimClaim ”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry of its obligations except to the extent (if any) that Barberry shall have been prejudiced thereby. Barberry may, at its own expense, participate in the defense of any Third Party Claim, suit, action or proceeding (a( a ) upon notice to the Indemnified Person and (b( b ) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; providedprovided , howeverhowever , that (i( i ) Barberry’s 's counsel is reasonably satisfactory to the Indemnified Person, and (ii( ii ) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s 's counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The --------------------------------------------------- Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses Damages arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossDamages, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interestinterest or that the Indemnifying Person's counsel is inadequate to properly defend the Indemnified Person, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VI, except to the extent (if any) that Barberry the Indemnifying Person shall have been actually and materially prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, : (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding; and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 6.2 or 6.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that provided that: (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, ; and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its good faith judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interestinterest (after providing the Indemnifying Party prior written notice thereof and an opportunity to demonstrate otherwise), then such Indemnified Person may thereafter employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XI except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, expense (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 11.2 or 11.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, provided that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel (Seller's consent to the choice of counsel is required, such consent not to be unreasonably withheld) to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry of (a) Promptly (and in any event within 5 days after the assertion service of any claim, citation or summons) after becoming aware of any claim or the commencement of any suit, action or proceeding, proceeding made or brought by any Person not a party hereto (a “Third Party Claim”) hereto, in respect of which indemnity may be sought under this Agreement, the Indemnified Party shall give notice thereof to the Indemnifying Party; provided provided, however, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, , (i) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding, and (aii) upon notice to the Indemnified Person and (b) upon the delivery by Barberry the Indemnifying Person to the Indemnified Person of a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that provided that: (iiii) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and ; and (iiiv) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. . (c) If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. the Indemnifying Person. (d) If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person . (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. e) Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties Parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XIII except to the extent (if any) that Barberry the Indemnifying Person shall have been actually prejudiced thereby. Barberry mayThe Indemnifying Person shall, at its own expense, participate in assume the defense of any Third Party Claimclaim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s with counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry . The Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry assumes such defense, the The Indemnified Person shall have the right (but not the dutyobligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all All of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (other than by a “Third Party Claim”Governmental Authority with respect to Taxes) in respect of which indemnity may be sought under this Agreement or any Related Agreement; provided provided, that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article VIII, except to the extent (if any) that Barberry the Indemnifying Person shall have been materially prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person’s delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 8.2 or Section 8.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any LossLoss resulting therefrom, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; , provided, however, that (i) Barberrythe Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person, Person and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberrythe Indemnifying Person’s counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or action, proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable practicable, but in any event no later than twenty (20) days after receiving notice thereof, to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this AgreementAgreement (which notice shall be prepared and presented in good faith, and shall specify in reasonable detail the nature and amount of such claim together with all documents delivered to the Indemnified Person by or on behalf of such third party Person and such information as may be necessary for the Indemnifying Person to determine that the limitations in Section 9.4 have been satisfied); provided provided, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article IX except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry shall be liable for (b) upon notice to the entire amount of any LossIndemnified Person, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; providedthereof with counsel of its own choice and in the event of such assumption, howevershall have the exclusive right, that (i) Barberry’s counsel is reasonably satisfactory subject to the Indemnified PersonSection 9.7, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for to settle or compromise such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. Ifthe Indemnifying Person, howeverand such Indemnified Person will refrain, subject to any applicable Law and the regulations of any applicable stock exchange (provided, that the Indemnified Person reasonably determines will use best efforts to provide the Indemnifying Person with no less than twenty-four hours' notice in its judgment the event that representation by Barberry’s counsel it is required to make any public announcement or communication with the news media) from making any public announcements in respect of both Barberry and the Indemnified Person would present such counsel with a conflict of interestclaim, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimsuit, action, suit action or proceeding and Barberry shall pay all or otherwise communicating with the news media without the prior consent of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofIndemnifying Person. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations under this Article XI except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, expense (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding proceeding; and (ab) subject to Section 11.6, upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification pursuant to Section 11.2 or Section 11.3 for all Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interestinterest or if the Indemnifying Person's counsel is otherwise not reasonably satisfactory to the Indemnified Person, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the reasonable fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofthereof at the Indemnifying Person's expense (except as set forth in Section 11.5).

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 9.5(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is materially prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim, suit, action or proceeding Claim and (aii) upon written notice delivered to the Indemnified Person within fifteen (15) Business Days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person and (b) upon delivery by Barberry furnish the Indemnified Person with evidence reasonably satisfactory to the Indemnified Person a written agreement that the Indemnified Indemnifying Person is entitled and will be able to indemnification for all Losses arising out fully satisfy such Liability; and, provided, however, that the Indemnifying Person shall not have the right to assume control of the defense of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for pay the entire amount fees and expenses of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s counsel is reasonably satisfactory to retained by the Indemnified Person, and if (ii1) Barberry shall thereafter consult such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Proceeding, (2) the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time reasonably believes an adverse determination with respect to such Third Party Claim would be detrimental to or injure the reputation or future business prospects of the Indemnified Person or any of its Affiliates, (3) the Indemnified Person reasonably believes that the Indemnifying Person does not have the financial resources to defend the Third Party Claim, suit(4) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicts of interest between them, action (5) Seller is the Indemnifying Person and such Third Party Claim seeks money damages in excess of the then-remaining portion of the Indemnity Escrow Fund (less the then remaining portion of the Indemnity Escrow Fund), the Holdback Shares or proceeding. the Specific Litigation Escrow Fund, as applicable, (6) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or (7) Seller is the Indemnifying Person and the Indemnified Person reasonably believes the defense of such Third Party Claim would adversely affect the Indemnified Person’s relationship with any of its customers, suppliers, or other business relationships. (c) If Barberry assumes the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing or (ii) the Indemnified Person has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person and the Indemnified Person. (d) If the Indemnifying Person is not entitled to assume the defense of such Third Party Claim or does not give written notice to the Indemnified Person within fifteen (15) Business Days after receipt of the Claims Notice that the Indemnifying Person has elected to assume the defense of such Third Party Claim or if an appropriate court rules that the Indemnifying Person failed or is failing to vigorously prosecute or defend such Third Party Claim or shall withdraw from such defense, the Indemnified Person shall have the right (but not the duty) to participate in undertake the defense thereof and to employ counselor settlement thereof, at its own the Indemnifying Person’s expense, separate from . If the counsel employed by Barberry. If, howeverIndemnified Person controls the defense of any Third Party Claim pursuant to this Section 9.6(d), the Indemnified Person reasonably determines in its shall keep the Indemnifying Person timely apprised of the status of such Third Party Claim, and, if such Indemnified Person proposes to settle such Third Party Claim prior to a final judgment that representation by Barberry’s counsel of both Barberry thereon or to forgo any appeal with respect thereto, then the Indemnified Person shall give the Indemnifying Person prompt written notice thereof, and the Indemnified Person would present shall not settle such counsel with a conflict Third Party Claim without the prior written consent of interest, then such the Indemnifying Person (which shall not be unreasonably delayed or withheld). If an Indemnified Person may employ separate counsel to represent or defend it in controls any such Third Party Claim, action, suit the Indemnifying Person shall be entitled to participate in the defense or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention handling of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously with its own counsel and diligently or settle at its own expense. (e) Regardless of which Party controls the defense of any Third Party Claim, then the Indemnified Party will have the right to defendParties shall, at the sole cost and expense of Barberryshall cause their respective Affiliates to, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofof such Third Party Claim, including by providing or making available to the controlling Party all witnesses, pertinent records, materials, and information relating thereto in such Party’s possession or under such Party’s control (or in the possession or control of any of its Representatives) as is reasonably requested by the controlling Party or its counsel.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give written notice (the “Initial Notice”) as promptly as is reasonably practicable practicable, but in any event no later than 10 Business Days after receiving notice thereof, to Barberry the Indemnifying Person of the written assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may is to be sought under this Agreement; provided Agreement (which notice shall specify in reasonable detail the nature of such claim and the estimated amount (if then susceptible to estimation) that the Indemnified Person at that time plans to seek hereunder from the Indemnifying Person, together with such reasonably available information (if not already available to the Indemnifying Person) as may be necessary for the Indemnifying Person to determine that the limitations in Section 8.4 have been satisfied or do not apply); provided, that failure of the Indemnified Person to promptly give such notice of any such claim or commencement shall not relieve Barberry release, waive or otherwise affect the obligations under this Article 8 of its obligations the Indemnifying Person with respect thereto except to the extent (if any) that Barberry shall have been it is materially prejudiced therebyby the failure or delay in giving such notice. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimsuch claim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry to within 10 Business Days after the receipt of the Initial Notice from the Indemnified Person a written agreement that of the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, that (i) Barberry’s thereof with counsel is of its own choice reasonably satisfactory acceptable to the Indemnified Person, and in the event of such assumption, shall have the exclusive right, subject to compliance by the Indemnifying Person with clauses (iii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for and (iii) of Section 8.7, to settle or compromise such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person does not so elect to assume such defense in accordance with the terms of this Section 8.6, the Indemnified Person may defend such claim, suit, action or proceeding in such manner as the Indemnified Person may deem appropriate, including settling such claim or action or proceeding (after giving notice of the same to the Indemnifying Person) on such terms as the Indemnified Person may deem appropriate, and the Indemnifying Person shall assist and cooperate with such defense in accordance with Section 5.4(c) and, if liable pursuant to this Article 8, shall promptly indemnify the Indemnified Person in accordance with the provisions of this Article 8. If the Indemnifying Person so assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, counsel separate from the counsel employed by Barberry. Ifthe Indemnifying Person; provided, however, that the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel expense of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry so employed shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted borne by the Indemnified Person in good faith unless there exists actual or will be settled at potential conflicting interests between the discretion of Indemnifying Person and the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereofPerson. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Persons and the Escrow Agent of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided provided, however that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Persons of its their obligations under this Article VII, except to the extent (if any) that Barberry the Indemnifying Persons shall have been prejudiced thereby. Barberry The Indemnifying Persons may, at its their own expense, expense participate in the defense of any Third Party Claim, suit, action or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out of such Third Party Claim, suit, action or proceeding and that Barberry shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; provided, however, however that (i) Barberry’s the Indemnifying Persons' counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Persons shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry assumes the Indemnifying Persons assume such defense, the Indemnified Person shall have the right (but not the dutyobligation) to participate as counsel of record in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Persons. If, however, the Indemnified Person Persons reasonably determines determine in its their judgment that representation by Barberry’s the Indemnifying Persons' counsel of both Barberry the Indemnifying Persons and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claimclaim, action, suit or proceeding proceeding, and Barberry the Indemnifying Persons shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses the Indemnifying Persons choose to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as promptly as is reasonably practicable to Barberry the Indemnifying Person of the assertion of any claim, or the commencement of any suit, action or proceeding, by any Person not a party hereto (a “Third Party Claim”) in respect of which indemnity may be sought under this Agreement; provided that the failure of the Indemnified Person to promptly give notice shall not relieve Barberry the Indemnifying Person of its obligations except to the extent (if any) that Barberry the Indemnifying Person shall have been prejudiced thereby. Barberry The Indemnifying Person may, at its own expense, (a) participate in the defense of any Third Party Claimclaim, suit, action or proceeding and (ab) upon notice to the Indemnified Person and (b) upon delivery by Barberry the Indemnifying Person's delivering to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification Indemnification for all any Losses arising out of such Third Party Claimclaim, suit, action or proceeding and that Barberry the Indemnifying Person shall be liable for the entire amount of any Loss, at any time during the course of any such Third Party Claimclaim, suit, action or proceeding, assume the defense thereof; thereof provided, however, that (i) Barberry’s the Indemnifying Person's counsel is reasonably satisfactory to the Indemnified Person, and (ii) Barberry the Indemnifying Person shall thereafter consult with the Indemnified Person upon the Indemnified Person’s 's reasonable request for such consultation from time to time with respect to such Third Party Claimclaim, suit, action or proceeding. If Barberry the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberrythe Indemnifying Person. If, however, the Indemnified Person reasonably determines in from its judgment judgement that representation by Barberry’s the Indemnifying Person's counsel of both Barberry the Indemnifying Person and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or and defend it in any such Third Party Claimclaim, action, suit or proceeding and Barberry the Indemnifying Person shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Person in good faith or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry the Indemnifying Person chooses to defend or prosecute any such Third Party Claimclaim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereof.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingAction, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 8.7(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is materially prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim and (ii) upon written notice delivered to the Indemnified Person within ten (10) Business Days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person; provided, however, that as a condition precedent to the Indemnifying Person’s right to assume control of such defense, it must first: (A) enter into an agreement with the Indemnified Person (in form and substance reasonably satisfactory to the Indemnified Person) pursuant to which the Indemnifying Person agrees to be fully responsible for, and to provide full indemnification to the Indemnified Person for, all Losses relating to such Third Party Claim; and (B) furnish the Indemnified Person with evidence reasonably satisfactory to the Indemnified Person that the Indemnifying Person is and will be able to fully satisfy such Liability; provided, further, that the Indemnifying Person will not have the right to assume control of the defense of such Third Party Claim, and shall pay the fees and expenses of counsel retained by the Indemnified Person, if (1) such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Action, (2) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicts of interests between them, (3) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or (4) Seller is the Indemnifying Person and Indemnified Person reasonably believes the defense of such Third Party Claim would adversely affect the Indemnified Person’s relationship with any of its customers, suppliers, or other business relationships. (c) If the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing or (ii) the Indemnified Person has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person and the Indemnified Person. (d) Regardless of which Party controls the defense of any Third Party Claim, suitthe Parties shall, action and shall cause their respective Affiliates to, cooperate in the defense or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out prosecution of such Third Party Claim, suitincluding by providing or making available to the controlling Party all witnesses, action pertinent records, materials, and information relating thereto in such Party’s possession or proceeding and that Barberry shall be liable for under such Party’s control (or in the entire amount possession or control of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (iits Representatives) Barberry’s counsel as is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted requested by the Indemnified Person in good faith controlling Party or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofits counsel.

Notice of Third Party Claims; Assumption of Defense. The Indemnified Person shall give notice as (a) As promptly as is reasonably practicable to Barberry after receiving notice of the assertion of any claimclaim or demand, or the commencement of any suit, action or proceedingProceeding, by any Person who is not a party hereto an Indemnified Person in respect of which indemnification may be sought under this Agreement (a “Third Party Claim”), the Indemnified Person shall give a Claim Notice (in the form contemplated by Section 9.5(a)) to the Indemnifying Person in respect of which indemnity may be sought under this Agreementsuch Third Party Claim; provided provided, however, that the failure of the Indemnified Person to promptly give such notice shall not relieve Barberry the Indemnifying Person of its obligations under this Agreement except to the extent (if any) that Barberry shall have been the Indemnifying Person is materially prejudiced thereby. Barberry . (b) The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third Party Claim and (ii) upon written notice delivered to the Indemnified Person within ten (10) Business Days of the receipt of the Claim Notice (subject to the conditions and limitations set forth below), assume and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Person; provided, however, that as a condition precedent to the Indemnifying Person’s right to assume control of such defense, it must first: (A) enter into an agreement with the Indemnified Person (in form and substance reasonably satisfactory to the Indemnified Person) pursuant to which the Indemnifying Person agrees to be fully responsible for, and to provide full indemnification to the Indemnified Person for, all Losses relating to such Third Party Claim; and (B) furnish the Indemnified Person with evidence reasonably satisfactory to the Indemnified Person that the Indemnifying Person is and will be able to fully satisfy such Liability; and provided further, however, that the Indemnifying Person shall not have the right to assume control of the defense of such Third Party Claim, and shall pay the fees and expenses of counsel retained by the Indemnified Person, if (1) such Third Party Claim seeks non-monetary relief (in whole or in part) or relates to or arises in connection with any criminal Proceeding, (2) the Indemnified Person reasonably believes an adverse determination with respect to such Third Party Claim would be detrimental to or injure the reputation or future business prospects of the Indemnified Person or any of its Affiliates, (3) the named parties in any such action (including any impleaded parties) include both the Indemnified Person and the Indemnifying Person (or their respective Affiliates) and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing or conflicts of interest between them, (4) either Seller is the Indemnifying Person and such Third Party Claim seeks money damages in excess of the then-remaining portion of the Holdback Amount, (5) the Indemnifying Person fails to actively and diligently conduct the defense of such Third Party Claim, or (6) either Seller is the Indemnifying Person and the Indemnified Person reasonably believes the defense of such Third Party Claim would adversely affect the Indemnified Person’s relationship with any of its customers, suppliers, or other business relationships. (c) If the Indemnifying Person is permitted to assume and control the defense of any Third Party Claim and elects to do so, the Indemnified Person shall have the right to employ counsel separate from the counsel employed by the Indemnifying Person in such Third Party Claim and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (i) the employment thereof has been specifically authorized by the Indemnifying Person in writing or (ii) the Indemnified Person has been advised by legal counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Person and the Indemnified Person. (d) Regardless of which Party controls the defense of any Third Party Claim, suitthe Parties shall, action and shall cause their respective Affiliates to, cooperate in the defense or proceeding (a) upon notice to the Indemnified Person and (b) upon delivery by Barberry to the Indemnified Person a written agreement that the Indemnified Person is entitled to indemnification for all Losses arising out prosecution of such Third Party Claim, suitincluding by providing or making available to the controlling Party all witnesses, action pertinent records, materials, and information relating thereto in such Party’s possession or proceeding and that Barberry shall be liable for under such Party’s control (or in the entire amount possession or control of any Loss, at any time during the course of any such Third Party Claim, suit, action or proceeding, assume the defense thereof; provided, however, that (iits Representatives) Barberry’s counsel as is reasonably satisfactory to the Indemnified Person, and (ii) Barberry shall thereafter consult with the Indemnified Person upon the Indemnified Person’s reasonable request for such consultation from time to time with respect to such Third Party Claim, suit, action or proceeding. If Barberry assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Barberry. If, however, the Indemnified Person reasonably determines in its judgment that representation by Barberry’s counsel of both Barberry and the Indemnified Person would present such counsel with a conflict of interest, then such Indemnified Person may employ separate counsel to represent or defend it in any such Third Party Claim, action, suit or proceeding and Barberry shall pay all of the fees and disbursements in connection with the retention of such separate counsel. If Barberry fails to promptly notify the Indemnified Party that Barberry desires to defend the Third Party Claim pursuant, or if Barberry gives such notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of Barberry, the Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted requested by the Indemnified Person in good faith controlling Party or will be settled at the discretion of the Indemnified Person (with the consent of Barberry, which consent will not be unreasonably withheld). The Indemnified Person will have full control of such defense and proceedings, including any compromise or settlement thereof. Whether or not Barberry chooses to defend or prosecute any such Third Party Claim, suit, action or proceeding, all of the parties hereto shall cooperate in the defense or prosecution thereofits counsel.