Common use of Assumption of Defense Clause in Contracts

Assumption of Defense. (i) If a party entitled to indemnification hereunder (the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (Third Party Claim is made against an Indemnitee, the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall Indemnitor will be entitled, at Indemnifying Party’s sole discretion, to settle within one hundred twenty (120) days after receipt of written notice from the Indemnitee of the commencement or otherwise dispose assertion of any such Potential Third Party Claim, to assume the defense thereof (at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, however, that Indemnifying Party if in the opinion of counsel, such counsel and opinion being satisfactory to Indemnitor and its counsel, a conflict of interest exists between the Indemnitor and an Indemnitee in respect of such claim, such Indemnitee shall have the right to cure such matter that is the subject of the Potential Claim employ separate counsel (subject which shall be reasonably satisfactory to the rights Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event, the owner of the Property at the time reasonable fees and expenses of such cure to approve the manner of separate counsel shall be paid by such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expenseIndemnitor; and provided further, that if the Indemnitor shall only be responsible for the reasonable fees and expenses of one (1) separate counsel for such Indemnitee. If the Indemnitor assumes the defense of any such claimThird Party Claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party the Indemnitee shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation defense thereof and defense of and response to such claimemploy counsel, demand, action, proceeding, investigation or allegation on at its own behalf at Indemnifying Party’s expense. (ii) , separate from the counsel employed by the Indemnitor. If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical Indemnitor assumes the defense of Indemnified Partyany Third Party Claim, then Indemnified the Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee informed of developments relating to or in connection with such Third Party Claim, as may contest be reasonably requested by the Indemnitee (orincluding providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnitor chooses to defend a Third Party Claim, all Indemnitees shall reasonably cooperate with the prior written consent Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of Indemnifying Partythe Indemnitor). If the Indemnitor does not elect to assume control of the defense of any Third Party Claim, settlewithin the one hundred twenty (120) day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the claimIndemnitor, demandthe Indemnitee shall have the right, actionat the expense of the Indemnitor, proceedingafter three (3) Business Days notice to the Indemnitor of its intent to do so, investigation or allegation at Indemnifying Party’s expense using to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by Indemnified the Indemnitee), and to compromise or settle such Third Party and reasonably acceptable to Indemnifying PartyClaim, exercising reasonable business judgment.

Assumption of Defense. Any Indemnified Party hereunder will (i) If a party entitled give prompt notice to indemnification hereunder (the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) Party of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse claim with respect to which it seeks indemnification and (ii) permit such Indemnifying Party to assume the defense of such claim with counsel reasonably satisfactory to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided furtherhowever, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select employ separate counsel reasonably acceptable to Indemnifying Party and to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf but the fees and expenses of such counsel shall be at Indemnifying Party’s expense. the expense of such person unless: (iiA) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails has agreed, in writing, to pay such fees or expenses; (B) the Indemnifying Party shall have failed to assume as soon as reasonably practical the defense of such claim and employ counsel reasonably satisfactory to such Indemnified Party; or (C) based upon advice of counsel to such Indemnified Party, then there shall be one or more defenses available to such Indemnified Party may contest that are not available to the Indemnifying Party or there shall exist conflicts of interest pursuant to applicable rules of professional conduct between such Indemnified Party and the Indemnifying Party (orin which case, with if the prior written consent Indemnified Party notifies the Indemnifying Party in writing that such Indemnified Party elects to employ separate counsel at the expense of the Indemnifying Party, settle) the claimIndemnifying Party shall not have the right to assume the defense of such claim on behalf of such Indemnified Party), demandin each of which events the fees and expenses of such counsel shall be at the expense of the Indemnifying Party. The Indemnifying Party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld or delayed), actionbut if settled with its written consent, or if there be a final judgment against the Indemnified party in any such action or proceeding, investigation the Indemnifying Party shall indemnify and hold harmless the Indemnified Parties from and against any loss or allegation at Indemnifying Party’s expense using counsel selected liability (to the extent stated above) by reason of such settlement or judgment. No Indemnified Party and reasonably acceptable will be required to Indemnifying Partyconsent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.

Assumption of Defense. (i) If Upon assumption of the defense of a party entitled to indemnification hereunder (Claim by the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”: (a) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall will have the right to cure and will assume sole control and responsibility for dealing with the Claim; (b) the Indemnifying Party may, at its own cost, appoint as counsel in connection with conducting the defense and handling of such matter that is Claim any law firm or counsel reasonably selected by the subject Indemnifying Party and reasonably acceptable to the Indemnified Party; (c) the Indemnifying Party will keep the Indemnified Party informed of the Potential Claim (subject to the rights of the owner of the Property at the time status of such cure to approve Claim; (d) the manner Indemnifying Party will be responsible for all amounts payable in settlement of such cureclaim, upon judgment by a court or by determination of an arbitrator or mediator or otherwise; and (e) if such cure the Indemnifying Party will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to settle the Claim on any terms the Indemnifying Party chooses; provided, however, that it will not, without the prior written consent of the Indemnified Party (not to be represented unreasonably delayed), agree to a settlement of any Claim which (i) could impair a Party’s ability, right or obligation to perform its obligations under this Agreement or to Practice the Assigned Patent Rights or the License Back as provided herein; (ii) could lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; or (iii) admits any wrongdoing or responsibility for the Claim on behalf of the Indemnified Party; provided, however, that for the avoidance of doubt, settlements involving only the payment of money by advisory counsel the Indemnifying Party will not constitute settlements that invoke clauses (i) through (iii). The Indemnified Party will cooperate with the Indemnifying Party and will be entitled to participate in, but not control, the defense of such Claim with its own selection counsel and at its own expense; . In particular, the Indemnified Party (at the sole cost and provided furtherexpense of the Indemnifying Party) will furnish such records, that if any information and testimony, provide witnesses and attend such claimconferences, demanddiscovery proceedings, actionhearings, proceeding, investigation or allegation involves both trials and appeals as may be reasonably requested in connection therewith. Such cooperation will include reasonable access during normal business hours by the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and Indemnified Party shall have information that are reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response relevant to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 appliesClaim, and Indemnifying Party fails to assume as soon as reasonably practical making the defense of Indemnified Party, then Indemnified Party may contest the Indemnitees and its and their employees and agents available on a mutually convenient basis (or, with at the prior written consent sole cost and expense of the Indemnifying Party, settle) the claim, demand, action, proceeding, investigation to provide additional information and explanation of any records or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Partyinformation provided.

Assumption of Defense. (i) If a party The Indemnifying Party shall be entitled to indemnification hereunder (participate in the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) defense of any claimThird Party Claim that is the subject of a notice given by the Indemnified Person pursuant to Section 9.2.5(a). In addition, demand, action, administrative or legal proceeding, investigation or allegation adverse upon written notice to the Indemnified Party and as to which Person, the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is defend the subject of Indemnified Person against the Potential Third Party Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory with counsel of its own selection choice reasonably satisfactory to the Indemnified Person so long as the Indemnifying Party acknowledges its liability for such indemnification hereunder (which liability for indemnification shall thereby be conclusively established) and shall keep the Indemnified Person reasonably informed with respect to the Third Party Claim. In such event, the Indemnified Person may retain separate co-counsel at its own expensesole cost and expense and participate in the defense of the Third Party Claim (though not of record, and shall not communicate with the Person asserting the Third Party Claim, or such Person’s Representatives, without the prior written consent of the Indemnifying Party); and provided furtherprovided, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and the Indemnified Party and Indemnified Party Person shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with separate counsel is required because a conflict of interest would otherwise exist or in addition to those available to because of the Indemnifying Party’s failure to defend for a period of sixty (60) calendar days any claim after receiving notice from the Indemnified Person of such alleged failure to defend, then the Indemnified Party Person shall have the right to select separate counsel reasonably acceptable to Indemnifying Party of its own choosing to participate in the investigation and defense defense, settlement, adjustment or compromise of and response to such claim, demand, action, proceeding, investigation or allegation action on its own behalf at Indemnifying Party’s expense. behalf, and the reasonable costs and expenses (including reasonable attorneys’ fees) of defending such Third Party Claim shall be included as Losses. Furthermore, notwithstanding the foregoing, if (i) a Third Party Claim seeks relief other than the payment of monetary damages, or (ii) If a Third Party Claim is or relates directly to any claimcriminal Action, demandthen, actionin each case, proceedingthe Indemnified Person alone shall be entitled to contest, investigation or allegation arises as to which defend and settle such Third Party Claim ((i) and (ii) together, the indemnity provided for in this Section 13.4 applies, and “Excepted Procedural Matters”). The Indemnifying Party fails shall not consent to assume as soon as reasonably practical the defense entry of Indemnified Party, then Indemnified any judgment or enter into any compromise or settlement with respect to the Third Party may contest (or, with Claim without the prior written consent of the Indemnified Person (such consent not to be unreasonably withheld, conditioned or delayed) unless such judgment, compromise or settlement (i) provides for the payment of money as sole relief for the claimant, and (ii) subject to the making of such payment, results in the full and general release of such Indemnified Person from all liabilities arising from or relating to the Third Party Claim. For the avoidance of doubt, any amounts paid or to be paid by an Indemnifying PartyParty in connection with the defense, settlesettlement or other resolution of any Third Party Claims shall be deemed to be Losses for purposes of the monetary limitations set forth in Section 9.2.4(b) and shall, in the claimcase of any indemnification claim under Section 9.2.1, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Partybe paid solely in accordance with Section 9.2.3.

Assumption of Defense. (i) If a Regarding claims asserted under this Section 7.04 and involving third party entitled to indemnification hereunder (claims, within 20 days after delivery of the “Indemnified Party”) notifies Claim Notice, the party liable for such indemnification (the “Indemnifying Party”) of any claimParty may, demand, action, administrative or legal proceeding, investigation or allegation adverse upon written notice thereof to the Indemnified Party and as Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”)Indemnified Party; provided, however, that the Indemnifying Party shall assume on behalf of not be entitled to control and the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitledentitled to have sole control over any claim to the extent such claim seeks an order, at Indemnifying Party’s sole discretioninjunction or other equitable relief against the Indemnified Party which, to settle if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject otherwise) or prospects of the Potential Claim (subject Indemnified Party or relates to the rights Taxes reflected or to be reflected in a Tax Return of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that the Indemnified Party have shall provide written notice to the right to be represented by advisory counsel Indemnifying Party of its own selection and election to assume control over the defense of such claim pursuant to this Section 7.04. If the Indemnifying Party does not so assume control of such defense within said 20 day period, the Indemnified Party shall control such defense. The party not controlling such defense (the "Non-controlling Party") shall be entitled to participate therein at its own expense; and provided further, that if any the Indemnifying Party assumes control of such claim, demand, action, proceeding, investigation or allegation involves both defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal conflicting interests or different defenses available with respect to it which are inconsistent with such suit or in addition to those available to Indemnifying Partyproceeding, then the Indemnified Party shall have the right to select a separate counsel reasonably acceptable and to Indemnifying Party assume such legal defenses and otherwise to participate in the investigation and defense of such action, with the reasonable fees and response expenses of counsel to the Indemnified Party being considered "Damages" for purposes of this Agreement. Except in a case of such conflict, the party controlling such defense (the "Controlling Party") shall keep the Non-controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, actioninvoice, proceeding, investigation billing or allegation on its own behalf at Indemnifying Party’s expense. (iiother document evidencing or asserting the same) If any claim, demand, action, proceeding, investigation or allegation arises as to which and shall otherwise cooperate with and assist the indemnity provided for Controlling Party in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then such suit or proceeding. The Indemnified Party may contest (orshall not agree to any settlement of or consent to the entry of any judgment arising from any suit or proceeding without the consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not agree to any settlement of, with or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of Indemnifying the Indemnified Party, settle) which shall not be unreasonably withheld or delayed; provided that the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by consent of the Indemnified Party shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and reasonably acceptable to Indemnifying such settlement or judgment includes a complete release of the Indemnified Party from further liability and has no other adverse effect on the Indemnified Party.

Assumption of Defense. An Indemnified Party (or in the case of a Stockholder Indemnified Party, the Stockholder Representative) shall promptly give notice to each Indemnifying Party after obtaining knowledge of any matter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall provide such notice no later than forty-five (45) days after the Indemnifying Party first receives notice of such claim and shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article IX, except, and only, to the extent such Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an Indemnifying Party may not assume the defense of any such third-party claim if (i) If the claim could reasonably result in imprisonment of or imposition of a party entitled to indemnification hereunder civil or criminal fine against the Indemnified Party or its representatives, (ii) the “claim could reasonably result in an equitable remedy that would impair the Indemnified Party”’s ability to exercise its rights under this Agreement, or impair Parent’s right or ability to operate or control any Target Entity or any Target Entity Operation, (iii) notifies the party liable claim names both the Indemnifying Party and the Indemnified Party (including impleaded parties) and representation of both such Parties by the same counsel would create a conflict, (iv) the aggregate amount of all Losses with respect to such claim or demand exceeds the remaining Indemnification Escrow Amount and Identified Matters Escrow Amount available to provide indemnification for such indemnification (the “Indemnifying Party”) of any claim, claim or demand, action, administrative or legal proceeding, investigation or allegation adverse to (v) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party and as the Indemnified Party is reasonably likely to which be prejudiced by such conflict of interest. If an Indemnifying Party assumes the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”)defense of such third party claim, such Indemnifying Party shall assume agree prior thereto, in writing, that it is liable under this Article IX to indemnify the Indemnified Party in accordance with the terms contained herein in respect of such claim (subject to the limitations and other terms and conditions set forth in Article IX), shall conduct such defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the Indemnified Party and conduct with due diligence and in good faith shall, subject to the investigation and defense thereof and the response thereto and shall be entitledprovisions of this Section 9.7, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is the subject Indemnifying Party shall not without the written consent (which consent shall not be unreasonably withheld, conditioned or delayed) of the Potential Claim Indemnified Party (subject to or in the rights case of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to a Stockholder Indemnified Party, and provided further that the Stockholder Representative) consent to the entry of any judgment or enter into any settlement with respect to the matter which (x) does not include a provision whereby the plaintiff or the claimant in the matter releases the Indemnified Party from all liability with respect thereto and (y) in the case of Parent, does not include any provision that would impose any obligation (including an obligation to refrain from taking action) upon the Centerre Companies. The Indemnified Party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an Indemnifying Party to notify the Indemnified Party (or in the case of a Stockholder Indemnified Party, the Stockholder Representative) of its election to defend any such claim or proceeding by a third party within thirty (30) days after notice thereof shall have been given to such Indemnifying Party by the Indemnified Party (or in the case of a Stockholder Indemnified Party, the Stockholder Representative), shall be deemed a waiver by such Indemnifying Party of its right to be represented by advisory counsel of its own selection and at its own expensedefend such claim or action; and provided furtherthat, that if any such claima shorter time is necessary to timely respond to a court filing, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and then the Indemnified Party shall have reasonably concluded that there may be entitled to employ legal defenses available counsel to it which are inconsistent with or in addition respond to those available to Indemnifying Party, then Indemnified Party shall have such filing until receipt by the right to select separate counsel reasonably acceptable to Indemnifying Party of a timely notice of its election to participate in the investigation and defense of and response to defend such claim, demand, action, claim or proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (In the “Indemnified Party”) notifies the party liable for event that any such indemnification (the “Indemnifying Party”) of any claiminvestigation, demandlitigation, action, administrative proceeding or legal proceedingclaim is brought by a third party against any Indemnified Party, investigation or allegation adverse to the unless, in such Indemnified Party’s sole judgment (based on advice of counsel), a conflict of interest between such Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), relevant Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and exists in good faith the investigation and defense thereof and the response thereto and shall be entitledrespect thereto, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure assume the defense thereof and defend the Indemnified Party against such matter that is investigation, litigation, action, proceeding or claim with counsel reasonably satisfactory to such Indemnified Party. Upon notice from any Indemnifying Party of its election to assume the subject defense of any such investigation, litigation, action, proceeding or claim as permitted hereby, such Indemnifying Party shall not be liable to any Indemnified Party for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof (other than the reasonable costs of assisting in the defense thereof as required by this Section). Such Indemnifying Party shall in any event keep such Indemnified Party informed of the Potential Claim (subject to the rights of the owner of the Property at the time status of such cure to approve the manner of investigation, litigation, action, proceeding or claim which it is defending and permit such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and participate in such investigation, litigation, action, proceeding or claim (at its own expense; ), and provided furthersuch Indemnified Party shall reasonably cooperate with such Indemnifying Party in the defense of such investigation, that if any such claim, demandlitigation, action, proceeding, investigation proceeding or allegation involves both claim and shall give such Indemnifying Party access to relevant books and records in its possession or under its control. If the Indemnifying Party declines (or is not permitted) to exercise its right to defend under this Section 12(e), the Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Partywill defend against such investigation, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demandlitigation, action, proceedingproceeding or claim in any manner consistent with its defense of similar claims and shall not consent to the entry of any dismissal or judgment, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If enter into any claim, demand, action, proceeding, investigation settlement or allegation arises as to which compromise without the indemnity provided for in this Section 13.4 applies, and consent of the Indemnifying Party fails (not to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation be unreasonably withheld or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Partydelayed).

Assumption of Defense. (i) If Upon assumption of the defense of a party entitled to indemnification hereunder (Claim by the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”: (a) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall will have the right to cure and will assume sole control and responsibility for dealing with the Claim; (b) the Indemnifying Party may, at its own cost, appoint as counsel in connection with conducting the defense and handling of such matter that is Claim any law firm or counsel reasonably selected by the subject Indemnifying Party; (c) the Indemnifying Party will keep the Indemnified Party informed of the Potential Claim (subject to the rights of the owner of the Property at the time status of such cure to approve Claim; and (d) the manner of such cure) if such cure Indemnifying Party will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to settle the Claim on any terms the Indemnifying Party chooses; provided, however, that it will not, without the prior written consent of the Indemnified Party (not to be represented unreasonably withheld, conditioned or delayed), agree to a settlement of any Claim which (i) could impair a Party’s ability, right or obligation to perform its obligations under this Agreement or for Novartis to Practice the Assigned Patent Rights; (ii) could lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; or (iii) admits any wrongdoing or responsibility for the Claim on behalf of the Indemnified Party; provided, however, that for the avoidance of doubt, settlements involving only the payment of money by advisory counsel the Indemnifying Party will not constitute settlements that invoke clauses (i) through (iii). The Indemnified Party will cooperate with the Indemnifying Party and will be entitled to participate in, but not control, the defense of such Claim with its own selection counsel and at its own expense; . In particular, the Indemnified Party will furnish such records, information and provided furthertestimony, that if any provide witnesses and attend such claimconferences, demanddiscovery proceedings, actionhearings, proceeding, investigation or allegation involves both trials and appeals as may be reasonably requested in connection therewith. Such cooperation will include access during normal business hours by the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and Indemnified Party shall have information that are reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response relevant to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 appliesClaim, and Indemnifying Party fails to assume as soon as reasonably practical making the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent Indemnitees and its and their employees and agents available on a mutually convenient basis to provide additional information and explanation of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation any records or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Partyinformation provided.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that The Indemnifying Party shall have the right right, upon written notice to cure the Indemnified Party within ten (10) Business Days of receipt of a Claim Notice from the Indemnified Party in respect of such matter that is Third Party Claim, to assume the subject defense thereof at the expense of the Potential Claim Indemnifying Party (subject to which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and satisfactory to the Indemnified Party and Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall have reasonably concluded not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that there may be legal defenses available to it which are inconsistent with would impose criminal liability or in addition to those available to Indemnifying Partydamages, then and the Indemnified Party shall have the right to select defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this ‎Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel reasonably acceptable to the Indemnifying Party and to participate in the investigation defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest, it being understood that the Indemnifying Party shall control such defense. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall reasonably cooperate with the Indemnifying Party in such defense and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at retain and (upon the Indemnifying Party’s expense. request) provide to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, (i) the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent, (ii) If the Indemnifying Party shall not enter into any claimsettlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, demandcompromise or judgment (A) involves a finding or admission of wrongdoing by the Acquiror or its Affiliates (including after the Closing, action, proceeding, investigation the Company) or allegation arises as to (B) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the indemnity provided for in this Section 13.4 applies, and Indemnifying Indemnified Party fails to assume as soon as reasonably practical will be indemnified hereunder. If the Indemnified Party shall have assumed the defense of Indemnified Partya Third Party Claim in accordance with this Agreement, then the Indemnified Party may contest (or, if the Indemnified Party is the Acquiror) shall not enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim without the express prior written consent of Indemnifying Partythe Securityholder Representative (which consent will not be unreasonably withheld, settle) the claim, demand, action, proceeding, investigation conditioned or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Partydelayed).

Assumption of Defense. If any Claim is brought against a Caldwell Indemnitee or a Matrix Indemnitee and the Claiming Party gives notice to the Indemnifying Party of such Claim, the Indemnifying Party will, unless the Claim involves Taxes (which shall be resolved in accordance with the procedures in Section 4.28), be entitled to participate in such Claim and, to the extent that it wishes (unless (i) If such Indemnifying Party is also a party entitled to indemnification hereunder (such Claim and the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Claiming Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and determines in good faith that joint representation would be inappropriate, or (ii) the investigation Indemnifying Party fails to provide reasonable assurance to the Claiming Party of its financial capacity to defend such Claim and provide indemnification with respect to such Claim), to assume the defense thereof of such Claim with counsel reasonably satisfactory to the Claiming Party and, after notice from the Indemnifying Party to the Claiming Party of its election to assume the defense of such Claim, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Claiming Party or the other relevant Caldwell Indemnitee(s) or Matrix Indemnitee(s) (as applicable) under this Section 10 for any fees of other counsel or any other expenses with respect to the defense of such Claim, in each case subsequently incurred by the Claiming Party or the other relevant Caldwell Indemnitee(s) or Matrix Indemnitee(s) (as applicable) in connection with the defense of such Claim, other than their reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Claim, (i) it will be conclusively established for purposes of this Agreement that the Claim (and any resulting Damages) are within the scope of and subject to indemnification by the Indemnifying Party; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Claiming Party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the Claiming Party or any other Caldwell Indemnitee or Matrix Indemnitee (as applicable), and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Claiming Party and each relevant Caldwell Indemnitee or Matrix Indemnitee (as applicable) will have no liability with respect to any compromise or settlement of such Claims effected without its consent. The Claiming Party and any relevant Caldwell Indemnitee or Matrix Indemnitee shall be entitled to participate (at its expense) in the defense of any Claim assumed by the Indemnifying Party as contemplated herein. If notice is given to an Indemnifying Party of any Claim and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall does not, within ten days after the Claiming Party's notice is given, give notice to the Claiming Party of its election to assume the defense of such Claim, the Indemnifying Party will no longer have the right to cure such matter assume that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Partydefense, and provided further that Indemnified will be bound by any determination made in such Claim or any compromise or settlement effected by the Claiming Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if or any such claim, demand, action, proceeding, investigation other Caldwell Indemnitee or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expenseMatrix Indemnitee (as applicable). (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (ia) If a party entitled to indemnification hereunder (the “Indemnified Party”) Purchaser notifies the party liable for such indemnification (the “Indemnifying Party”) Seller of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in this Section 13.4(a4.1(n)(iii) applies (a “Potential Claim”)applies, Indemnifying Party Seller shall assume on behalf of Indemnified Party Purchaser and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, with counsel reasonably satisfactory to settle or otherwise dispose of any such Potential ClaimPurchaser; provided, that Indemnifying Party Purchaser shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party Seller and Indemnified Party Purchaser and Indemnified Party Purchaser shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying PartySeller, then Indemnified Party Purchaser shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s Seller's expense. (iib) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 4.1(n)(iii) applies, and Indemnifying Party Seller fails to assume as soon as reasonably practical promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of Indemnified PartyPurchaser, then Indemnified Party Purchaser may contest (or, with the prior written consent of Indemnifying PartySeller, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s Seller's expense using counsel selected by Indemnified Party Purchaser; provided, that after any such failure by Seller which continues for thirty (30) days or more no such contest need be made by Purchaser and reasonably acceptable settlement or full payment of any claim may be made by Purchaser without Seller's consent and without releasing Seller from any obligations to Indemnifying PartyPurchaser under this Section 4.1(n)(iii) if, in the written opinion of reputable counsel to the Purchaser, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If a An indemnified party entitled shall promptly give notice to indemnification hereunder (the “Indemnified Party”) notifies the each indemnifying party liable for such indemnification (the “Indemnifying Party”) after obtaining knowledge of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided for under Section 8.10, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. If such indemnity claim shall arise from an action or claim of a third party, the indemnifying party shall be entitled to assume the defense of any such claim or any proceeding resulting from such claim; provided that the indemnifying party has acknowledged in Section 13.4(a) applies (a “Potential Claim”)writing to the indemnified party that it will be obligated to indemnify the indemnified party with respect to such claim in accordance with this Agreement. If an indemnifying party assumes the defense of such third-party claim, Indemnifying Party such indemnifying party shall assume have full and complete control over the conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and in good faith shall, subject to the investigation and defense thereof and the response thereto and shall be entitledprovisions of this Section 8.11, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is the subject of the Potential Claim (subject any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the rights of indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense; provided that if the owner of named parties to the Property at action or proceeding (including any impleaded parties) include both the time of such cure indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that there may be one or more legal defenses available to approve the manner of such cure) if such cure indemnified party that are different from or additional to those available to the indemnifying party, then the indemnified party will not result in additional liability or material loss of rights be entitled to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory separate counsel of its own selection and choosing, at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in reasonable expense of indemnified party. The indemnifying party will not without the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Partythe indemnified party, settlesuch consent not to be unreasonably withheld or delayed, consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the claim, demand, indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Any Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and be entitled to participate in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Partyaction, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, actionlawsuit, proceeding, investigation or allegation involves both other claim giving rise to an Indemnified Party's claim for indemnification at such Indemnifying Party's expense, and at its option (subject to the limitations set forth below) and its expense shall be entitled to appoint a nationally recognized and reputable counsel acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided that prior to the Indemnifying Party and assuming control of such defense it shall first verify to the Indemnified Party in writing that such Indemnifying Party shall be fully responsible (with no reservation of any rights) for all liabilities and obligations relating to the entire matter which gives rise to such claim for indemnification and that it will provide full indemnification (whether or not otherwise required hereunder), to the extent of the Escrow, to the Indemnified Party with respect to such matter, action, lawsuit, proceeding, investigation, or other claim giving rise to such claim for indemnification hereunder; and provided, further, that: (1) the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnifying Party); (2) the Indemnifying Party shall not be entitled to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party if (v) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indict- ment, allegation or investigation; (w) the Indemnified Party reasonably believes that an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnified Party's reputation or future business prospects; (x) the claim seeks an injunction or equitable relief against the Indemnified Party; (y) the claim involves intellectual property matters in which case the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have sole control and management authority over the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense resolution of and response to such claim, demandincluding hiring legal counsel and intellectual property - consultants, actionnegotiating with the U.S. Patent Office and other governmental authorities and third parties and defending or settling claims and actions; or (z) upon petition by the Indemnified Party, proceeding, investigation an appropriate court rules that the Indemnifying Party failed or allegation on its own behalf at Indemnifying Party’s expense.is failing to vigorously prosecute or defend such claim; (ii3) If any claim, demand, action, proceeding, investigation or allegation arises as to which if the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to does not assume as soon as reasonably practical control of the defense of any such claim within ten business days after the Indemnified PartyParty provides notice of such claim pursuant to Section 3(d)(i), then the Indemnified Party may contest enter into any settlement of such claims and such settlement will be binding upon the Indemnifying Party for purposes of determining whether any amount of indemnification is payable pursuant to Section 3(b); provided that so long as the Indemnifying Party is not prohibited under clause (or2) of this Section 3(d)(ii) from assuming control of the defense of such claim (except in the event that such prohibition is solely the result of clause (2)(w) of this Section or solely the result of clause (2)(x) of this Section), with the Indemnified Party will obtain the prior consent (which consent shall not be unreasonably withheld) of the Indemnifying Party prior to entering into any such settlement; and (4) if the Indemnifying Party assumes control of the defense of any such claim, then the Indemnifying Party will obtain the prior written consent of Indemnifying Partythe Indemnified Party before entering into any settlement of such claim or ceasing to defend such claim if, settle) pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, demandwithout prejudice. Notwithstanding the foregoing, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by if the Indemnified Party and reasonably acceptable is controlling the defense of such claim, the Indemnifying Party shall not be liable for any settlement effected without its prior written consent (which shall not be unreasonably withheld). As used in this Section 3, the term "settlement" refers to Indemnifying Partyany settlement, compromise, consent or similar decree, or election to permit default judgment to be entered in respect of any claim.

Assumption of Defense. (ia) If a party The Indemnifying Party shall have thirty (30) days after receipt of the Claim Notice to elect, at its option, to assume and control the defense of, at its own expense and by its own counsel, any such Third-Party Claim and shall be entitled to indemnification hereunder (the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) of assert any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse and all defenses available to the Indemnified Person to the fullest extent permitted by applicable law; provided that, prior to the Indemnifying Party assuming and as controlling such defense, it shall first confirm to which the indemnity provided for Indemnified Person in Section 13.4(a) applies (a “Potential Claim”)writing that, assuming the facts then presented to the Indemnifying Party by the Indemnified Person being true, the Indemnifying Party shall assume on behalf of indemnify the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of Person for any such Potential Losses to the extent resulting from, or arising out of, such Third-Party Claim; provided, further, that, if the Indemnifying Party assumes such defense and, in the course of defending such Third-Party Claim, (x) the Indemnifying Party discovers that the facts presented at the time the Indemnifying Party acknowledged its indemnification obligation in respect of such Third-Party Claim were not true and (y) such untruth provides a reasonable basis for asserting that the Indemnifying Party does not have an indemnification obligation in respect of such Third-Party Claim, then (A) the Indemnifying Party shall not be bound by such acknowledgment, (B) the Indemnifying Party shall promptly thereafter provide the Indemnified Person written notice of its assertion that it does not have an indemnification obligation in respect of such Third-Party Claim and (C) the Indemnified Person shall have the right to assume the defense of such Third-Party Claim (it being agreed that all costs and expenses in conducting such defense prior to the date that the Indemnified Person shall have the ability to assume the defense, including costs and expenses of counsel, shall be the responsibility of the Indemnifying Party and not the Indemnified Person). If the Indemnifying Party shall undertake to compromise or defend any such Third-Party Claim, it shall promptly notify the Indemnified Person of its intention to do so, and the Indemnified Person agrees to, and to cause its Affiliates to, cooperate with the Indemnifying Party and its counsel in the compromise of, or defense against, any such Third-Party Claim, including by furnishing nonprivileged books and records, personnel and witnesses, as appropriate for any defense of such Third-Party Claim; provided, however, that the Indemnifying Party shall not settle, compromise or discharge, or admit any liability with respect to, any such Third-Party Claim without the prior written consent of the Indemnified Person (which consent will not be unreasonably withheld or delayed) unless the relief consists solely of money damages and includes a provision whereby the plaintiff or claimant in the matter releases the Buyer Indemnified Persons or Seller Indemnified Persons, as applicable, from all liability with respect thereto. Notwithstanding an election to assume the defense of such action or proceeding, the Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such action or proceeding, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the Indemnified Person shall have determined in good faith after consultation with counsel that an actual or potential conflict of interest makes representation by the same counsel or the counsel selected by the Indemnifying Party inappropriate or (ii) the Indemnifying Party shall have authorized in writing the Indemnified Person to employ separate counsel at the Indemnifying Party’s expense. In any event, the Indemnified Person and Indemnifying Party and their counsel shall cooperate in the defense of any Third-Party Claim subject to this Article 9 and keep such Persons informed of all developments relating to any such Third-Party Claims, and provide copies of all relevant correspondence and documentation relating thereto. All costs and expenses incurred in connection with the Indemnified Person’s cooperation shall be borne by the Indemnifying Party. In any event, the Indemnified Person shall have the right at its own expense to participate in the defense of such asserted liability. If the Indemnifying Party receiving such notice of Third-Party Claim does not elect to defend, or does not defend, such Third-Party Claim, the Indemnified Person shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnifying Party’s expense, to defend such Third-Party Claim; provided, however, that (i) the Indemnified Person’s defense of or participation in the defense of any such Third-Party Claim shall not in any way diminish or lessen the obligations of the Indemnifying Party under this Article 9; and (ii) the Indemnified Person shall not settle, compromise or discharge, or admit any liability with respect to, any such Third-Party Claim without the written consent of the Indemnifying Party (which consent will not be unreasonably withheld or delayed). Notwithstanding anything to the contrary in this Agreement, in the case of a Third-Party Claim related to both (x) Taxes for which the Sellers have an indemnification obligation pursuant to Section 6.10(a) and (y) Taxes for which Buyer is responsible (a Joint Tax Claim) (and the portion of such Joint Tax Claim related to Taxes described in clause (x) is not separable from the portion of such Joint Tax Claim related to Taxes described in clause (y)), the Controlling Party shall have the right and obligation to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Partyconduct, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense, such Joint Tax Claim; and provided furtherprovided, however, that if (A) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Joint Tax Claim, (B) the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such claimJoint Tax Claim, demand, action, proceeding, investigation or allegation involves both Indemnifying (C) the Controlling Party shall consult with the Non-Controlling Party and Indemnified offer the Non-Controlling Party and Indemnified an opportunity to comment before submitting any written materials prepared or furnished in connection with such Joint Tax Claim, (D) the Controlling Party shall have reasonably concluded that there may be legal defenses available to defend such Joint Tax Claim diligently and in good faith as if it which are inconsistent were the only party in interest in connection with or in addition to those available to Indemnifying Partysuch Joint Tax Claim, then Indemnified (E) the Non-Controlling Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party be entitled to participate in such Joint Tax Claim and attend any meetings or conferences with the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 appliesrelevant Taxing Authority, and Indemnifying (F) the Controlling Party fails to assume as soon as reasonably practical the defense of Indemnified Partyshall not settle, then Indemnified Party may contest (or, with compromise or abandon any such Joint Tax Claim without obtaining the prior written consent of Indemnifying the Non-Controlling Party, settlewhich consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of this Agreement, Controlling Party shall mean the Sellers, if the Sellers and their Affiliates are reasonably expected to bear the greater Tax liability in connection with such Joint Tax Claim, or the Buyer, if Buyer and its Affiliates are reasonably expected to bear the greater Tax liability in connection with such Joint Tax Claim (taking into account any potential liability in subsequent Tax periods); and Non-Controlling Party shall mean whichever of the Sellers or the Buyer is not the Controlling Party with respect to such Joint Tax Claim. (b) As promptly as is reasonably practicable (but in any event, within ten (10) Business Days) after becoming aware of a claim for indemnification under this Agreement not involving a Third-Party Claim, the Indemnified Person shall provide a Claim Notice to the Indemnifying Party of such claim. Each party hereto also agrees that any direct claim which such party may bring against any other party hereto under the provisions of this Agreement shall be governed exclusively by the provisions of this Article 9, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Partyother than Section 9.6(a).

Assumption of Defense. An Indemnified Party (or in the case of a Seller Indemnified Party, the Seller Representative) shall promptly give notice to each Indemnifying Party after obtaining knowledge of any matter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XI, except, and only, to the extent such Indemnifying Party shall have been actually prejudiced as a result of such failure. Notwithstanding the foregoing, an Indemnifying Party may not assume the defense of any such third-party claim if the claim (i) If could result in imprisonment of or imposition of a party entitled to indemnification hereunder (civil or criminal fine against the “Indemnified Party”, (ii) notifies could result in an equitable remedy that would impair the Indemnified Party’s ability to exercise its rights under this Agreement, or impair the Purchaser’s right or ability to use the Purchased Assets or operate any Hospital, or (iii) the claim names both the Indemnifying Party and the Indemnified Party (including impleaded parties) and representation of both such Parties by the same counsel would create a conflict. If an Indemnifying Party assumes the defense of such third party liable for such indemnification (the “Indemnifying Party”) of any claim, demandsuch Indemnifying Party shall agree prior thereto, actionin writing, administrative or legal that it is liable under this Article XI to indemnify the Indemnified Party in accordance with the terms contained herein in respect of such claim, shall conduct such defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of the Indemnified Party and shall, subject to the provisions of this Section 11.6, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, investigation or allegation adverse however, that any counsel chosen by such Indemnifying Party to conduct such defense shall be reasonably satisfactory to the Indemnified Party (or in the case of a Seller Indemnified Party, the Seller Representative); and as to which provided, further, however, that the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf not without the written consent of the Indemnified Party and conduct with due diligence and (or in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose case of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to a Seller Indemnified Party, and provided further that the Seller Representative) consent to the entry of any judgment or enter into any settlement with respect to the matter which (x) does not include a provision whereby the plaintiff or the claimant in the matter releases the Indemnified Party have from all liability with respect thereto, and (y) in the right case of the Purchaser, does not include any provision that would impose any obligation (including an obligation to be represented by advisory refrain from taking action) upon the Sellers. The Indemnified Party may participate in such proceeding and retain separate co-counsel of its own selection and at its own sole cost and expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to . Failure by an Indemnifying Party to participate notify the Indemnified Party (or in the investigation and defense case of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of a Seller Indemnified Party, then the Seller Representative) of its election to defend any such claim or proceeding by a third party within thirty (30) days after notice thereof, or such shorter time necessary to timely respond to a court filing, shall have been given to such Indemnifying Party by the Indemnified Party may contest (or, with or in the prior written consent case of Indemnifying a Seller Indemnified Party, settle) the claimSeller Representative), demand, action, proceeding, investigation shall be deemed a waiver by such Indemnifying Party of its right to defend such claim or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying PartyAction.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (requested by the “Indemnified Party”) notifies , the party liable for such indemnification (Indemnifying Party shall assume the “Indemnifying Party”) defense of any claimclaim against the Indemnified Party in respect of which indemnification is being sought under this Agreement, demandprovided there is a reasonable prospect of success in pursuing such defense. In addition, actionthe Indemnifying Party may, administrative or legal proceeding, investigation or allegation adverse by written Notice delivered to the Indemnified Party with reasonable promptness after receipt of the Notice from the Indemnified Parly under Clause 12.3(b) or otherwise after the indemnifying Party becomes aware of any indemnification that could be sought under this Agreement, elect to assume the defense of such claim. Any assumption by the Indemnifying Party of such defense shall include the right to select and as retain counsel reasonably acceptable to which the indemnity provided for Indemnified Party. If the Indemnifying Party assumes such defense in Section 13.4(aaccordance with this Clause 12.3(c) applies with counsel reasonably acceptable to the Indemnified Party, then (a “Potential Claim”)t) the Indemnified Party may, at its own expense, participate in (but not control) the defense of such claim with separate counsel, and (ii) the Indemnifying Party shall assume not be liable to such Indemnified Party under this Clause 12.3 for any fees or disbursements of counsel subsequently incurred by such Indemnified Party in connection with such defense unless the Indemnifying Party has authorized the retention of counsel to the Indemnified Party at the expense of the Indemnifying Party. Assumption of such defense by the Indemnifying Party also includes the right to appear in proceedings on behalf of such Indemnified Party and conduct to propose, accept or reject offers of settlement, all at its sole cost, so long as such Indemnifying Party conducts such defense diligently and with due diligence competent counsel, and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying settlement includes a full and final resolution (without requiring contribution from the Indemnified Party shall have the right to cure such matter that is therefor) of the subject of claim and does not include any injunctive or non-monetary relief affecting the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel subject claim does not involve allegations of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expensecriminal wrongdoing. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (i1) If a party entitled to indemnification hereunder (the “Indemnified Party”) an Interested Party notifies the party liable for such indemnification (the “Indemnifying Party”) Specialty Laboratories of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”)this Paragraph 12 applies, Indemnifying Party Specialty Laboratories shall assume on behalf of Indemnified the Interested Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying with counsel reasonably satisfactory to the Interested Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying the Interested Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Specialty Laboratories and the Interested Party and Indemnified Party and Indemnified the Interested Party shall have reasonably concluded been advised in writing by reputable counsel that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying PartySpecialty Laboratories, then Indemnified the Interested Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expensebehalf, and Specialty Laboratories shall pay or reimburse the Interested Party for all Attorney's Fees incurred by the Interested Party because of the selection of such separate counsel. (ii2) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 Paragraph 12 applies, and Indemnifying Party Specialty Laboratories fails to assume as soon as reasonably practical promptly (and in any event within twenty days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of Indemnified the Interested Party, then Indemnified the Interested Party may contest (oror settle, with the prior written consent of Indemnifying PartySpecialty Laboratories, settlewhich consent shall not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s Specialty Laboratories' expense using counsel selected by Indemnified the Interested Party; provided, that after any such failure by Specialty Laboratories which continues for sixty days or more no such contest need be made or continued by the Interested Party and reasonably acceptable settlement or full payment of any claim may be made by the Interested Party without Specialty Laboratories' consent and without releasing Specialty Laboratories from any obligations to Indemnifying the Interested Party under this Paragraph 12 if, in the written opinion of reputable counsel to the Interested Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If Upon assumption of the defense of a party entitled to indemnification hereunder (Claim by the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”: (a) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall will have the right to cure and will assume sole control and responsibility for dealing with the Claim; (b) the Indemnifying Party may, at its own cost, appoint as counsel in connection with conducting the defense and handling of such matter that is Claim any law firm or counsel reasonably selected by the subject Indemnifying Party; (c) the Indemnifying Party will keep the Indemnified Party informed of the Potential Claim (subject to the rights of the owner of the Property at the time status of such cure to approve Claim; and (d) the manner of such cure) if such cure Indemnifying Party will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to settle the Claim on any terms the Indemnifying Party chooses; provided, however, that it will not, without the prior written consent of the Indemnified Party (not to be represented unreasonably withheld or delayed), agree to a settlement of any Claim which (i) could impair a Party’s ability, right or obligation to perform its obligations under this Agreement; (ii) with respect to a Claim for which Cerulean is the Indemnified Party, could impair Cerulean’s ability or right to research, develop or commercialize any product using Cerulean Background Intellectual Property; (iii) could lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; or (iv) admits any wrongdoing or responsibility for the Claim on behalf of the Indemnified Party; provided, however, that for the avoidance of doubt, settlements involving only the payment of money by advisory counsel the Indemnifying Party will not constitute settlements that invoke clauses (i) through (iv). The Indemnified Party will cooperate with the Indemnifying Party and will be entitled to participate in, but not control, the defense of such Claim with its own selection counsel and at its own expense; . In particular, the Indemnified Party will furnish such records, information and provided furthertestimony, that if any provide witnesses and attend such claimconferences, demanddiscovery proceedings, actionhearings, proceeding, investigation or allegation involves both trials and appeals as may be reasonably requested in connection therewith. Such cooperation will include access during normal business hours by the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and Indemnified Party shall have information that are reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response relevant to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 appliesClaim, and Indemnifying Party fails to assume as soon as reasonably practical making the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent Indemnitees and its and their employees and agents available on a mutually convenient basis to provide additional information and explanation of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation any records or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Partyinformation provided.

Assumption of Defense. An indemnified party shall promptly give written notice (which notice shall describe in reasonable detail the claim, the provisions of this Agreement upon which such claim is based and the total monetary damages sought) to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying parry because of the indemnity set forth in this Section 13, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Section 13, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Seller Indemnified Liabilities or Buyer Indemnified Liabilities, as applicable, that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, or (ii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If a an indemnifying party entitled to indemnification hereunder (assumes the “Indemnified Party”) notifies the defense of such third party liable for such indemnification (the “Indemnifying Party”) of any claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Section 13 to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation adverse to shall conduct such defense diligently, shall have full and complete control over the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and in good faith shall, subject to the investigation and defense thereof and the response thereto and shall be entitledprovisions of this Section 13, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is the subject of the Potential Claim (subject any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the rights of indemnified party, and the owner of the Property at the time of such cure to approve the manner of such cure) if such cure indemnifying party will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have without the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Partythe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto, settleor which may reasonably be expected to have an adverse effect on the indemnified party. The indemnified party may participate in, but may not control, such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a third party within thirty (30) the claim, demand, days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (the “an Indemnified Party”) Party notifies the party liable for such indemnification (the “Indemnifying Party”) Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”)this Paragraph 14 applies, Indemnifying Party Tenant shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying the Indemnified Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party Tenant and the Indemnified Party and the Indemnified Party shall have reasonably concluded been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying PartyTenant, then the Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expensebehalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 Paragraph 14 applies, and Indemnifying Party Tenant fails to assume as soon as reasonably practical promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (oror settle, with the prior written consent of Indemnifying PartyTenant, settlewhich consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s Tenant's expense using counsel selected by the Indemnified Party; provided, that after any such failure by Tenant which continues for thirty (30) days or more no such contest need be made by the Indemnified Party and reasonably acceptable settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to Indemnifying the Indemnified Party under this Paragraph 14 if, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. An Indemnified Party shall promptly give notice (i) If each, a party entitled to indemnification hereunder (the “Indemnified PartyNotice of Indemnification”) notifies the party liable for such indemnification (the “to each Indemnifying Party”) Party after obtaining knowledge of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and matter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above and, if such indemnity shall arise from the claim of a third party and Indemnifying Party provides written notice to Indemnified Party stating that Indemnifying Party is responsible for the entire claim within ten (10) days after Indemnifying Party’s receipt of the applicable Notice of Indemnification, shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such Notice of Indemnification promptly shall not affect the indemnification provided for in Section 13.4(a) applies (a “Potential Claim”)under this Article X, except and only to the extent such Indemnifying Party shall assume have been actually prejudiced as a result of such failure or if such Notice of Indemnification is not given to Indemnifying Party prior the applicable Expiration Date. If an Indemnifying Party assumes the defense of such third party claim, such Indemnifying Party shall have full and complete control over the conduct of such proceeding on behalf of Indemnified Party and shall, subject to the provisions of this Section 10.5, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, further, however, that any counsel chosen by such Indemnifying Party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto and shall be entitledreasonably satisfactory to Indemnified Party; and provided, at Indemnifying Party’s sole discretionfurther, to settle or otherwise dispose of any such Potential Claim; providedhowever, that Indemnifying Party shall have not without the right to cure such matter that is the subject written consent of the Potential Claim (subject Indemnified Party consent to the rights entry of any judgment or enter into any settlement with respect to the owner matter which (a) does not include a provision whereby the plaintiff or the claimant in the matter releases Indemnified Party from all liability with respect thereto; (b) in the case of Transferee as Indemnifying Party, does not include any provision that would impose any obligation (including an obligation to refrain from taking action) upon Seller; (c) does not impose an injunction or other equitable relief upon the Property at the time of such cure to approve the manner of such cureIndemnified Party; and (d) if such cure will does not result in additional liability or material loss include a finding or admission of rights to Indemnified Party, and provided further that Indemnified Party have a violation of Law by the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then indemnified party. Indemnified Party may contest participate in such proceeding and retain separate co-counsel at its sole cost and expense (orand, with for the prior written consent avoidance of Indemnifying Partydoubt, settle) such cost and expense shall not constitute a Loss for purposes of the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying PartyIndemnification Obligations).

Assumption of Defense. (i) If a party entitled to indemnification hereunder (the “any action or claim shall be brought or --------------------- asserted against an Indemnified Party”) notifies the party liable for such indemnification (the “Party in respect of which indemnity may be sought from an Indemnifying Party”) of , the Indemnified Party shall promptly notify the Indemnifying Party in writing (but the omission to notify the Indemnifying Party shall not release such person from any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse liability which it may have to the Indemnified Party Party, except to the extent that such failure materially prejudices the rights of the Indemnifying Party) and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose payment of any such Potential Claim; provided, that all reasonable third party expenses arising therefrom. The legal counsel selected by the Indemnifying Party shall have the right to cure such matter that is the subject of the Potential Claim (be subject to the rights consent of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to which consent shall not be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation unreasonably withheld or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then delayed. The Indemnified Party shall have the right to select employ separate counsel reasonably acceptable to Indemnifying Party in any such action and to participate in the investigation defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party, unless (a) the employment thereof has been specifically authorized in writing by the Indemnifying Party; (b) the Indemnifying Party has failed to assume the defense of and response employ counsel; or (c) the named parties to such claimaction include both the Indemnifying Party and the Indemnified Party, demandand the Indemnified Party shall have been advised in good faith by its counsel that the representation of the Indemnifying Party and the Indemnified Party by the same counsel may be inappropriate due to actual or potential differing interests between them, action, proceeding, investigation or allegation on its own behalf at in which case the fees of counsel for the Indemnified Party shall be paid by the Indemnifying Party’s expense. (ii) If any claim. In such events, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails shall not have the right to assume as soon as reasonably practical the defense of such action on behalf of the Indemnified Party. The Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expense of more than one separate firm of attorneys at any time for the Indemnified Party, then which firm shall be designated by the Indemnified Party may contest (orin writing. The Indemnifying Party shall not be liable for any settlement of any such action effected without its written consent, but if any such action is settled with the prior written consent of Indemnifying Party's written consent, settle) or if there shall be a final judgment for the claim, demand, plaintiff in any such action, proceeding, investigation or allegation at the Indemnifying Party’s expense using counsel selected by Party shall indemnify and hold harmless the Indemnified Party from and reasonably acceptable to Indemnifying Partyagainst any loss or liability by reason of such settlement or judgment.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (In the “Indemnified Party”) event that the Indemnifying Party notifies the party liable for such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as within the Notice Period that it elects to which defend the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith against a third party claim or demand, the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is defend the subject Indemnified Party by appropriate proceedings, provided that, except with the prior written consent of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further no Indemnifying Party, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting the Indemnified Party have or that does not include as an unconditional term thereof the right giving by each claimant or plaintiff to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and of a release from all liability with respect to such claim or litigation. In the event that the Indemnified Party shall in good faith determinethat the Indemnified Party may have reasonably concluded that there may be legal defenses available to it which one or more defenses or counterclaims that are inconsistent with one or in addition to more of those that may be available to the Indemnifying PartyParty in respect of such claim or any litigation relating thereto, then the Indemnified Party shall have the right at all times to select separate counsel reasonably acceptable take over and assume control over the defense, settlement, negotiations or litigation relating to any such claim at the sole cost of the Indemnifying Party, provided that the Indemnifying Party shall not be required to participate pay for more than one legal counsel, and provided further that, if the Indemnified Party does so take over and assume control, the Indemnified Party shall not consent to entry of any judgment or settle such claim or litigation without the written consent of the Indemnifying Party. In the event that the Indemnifying Party does not accept the defense of any matter for which indemnification is required, the Indemnified Party shall have the full right to defend against any such claim or demand, and shall be entitled to settle or agree to pay in full such claim or demand at the expense of the Indemnifying Party. In any event, the Parties shall cooperate in the investigation and defense of any claim or litigation subject to this Article 9 and response the records of each shall be available to the other with respect to such claim, demand, action, proceeding, investigation or allegation on its own behalf at defense. Each Indemnifying Party’s expense. (ii) If obligation under this Article 9 shall not affect the other Party’s’ right to seek any claim, demand, action, proceeding, investigation or allegation arises as to which other remedy upon a default by the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Partyunder this Agreement.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any litigation resulting from such claim; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided under this Article VIII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in a criminal penalty or fine against the indemnified party the consequences of which would be reasonably likely to have a Material Adverse Effect on the indemnified party unrelated to the size of such penalty or fine, or (iii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair CALLISTO's right or ability to operate the Company. If a an indemnifying party entitled to indemnification hereunder (assumes the “Indemnified Party”) notifies the defense of such third party liable for such indemnification (the “Indemnifying Party”) of any claim, demandsuch indemnifying party shall conduct such defense diligently, action, administrative or legal proceeding, investigation or allegation adverse to shall have full and complete control over the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and shall, in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s his or her or its sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is the subject of the Potential Claim (subject any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the rights of the owner of the Property at the time of indemnified party. The indemnified party may participate in such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, proceeding and provided further that Indemnified Party have the right to be represented by advisory retain separate co-counsel of its own selection and at its own expense; sole cost and provided further, expense (except that if any such claim, demand, action, proceeding, investigation the indemnifying party shall be responsible for the fees and expenses of one separate co-counsel for the indemnified party to the extent the indemnified party is advised by its counsel that either (x) the counsel the indemnifying party has selected has a conflict of interest or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that (y) there may be are legal defenses available to it which the indemnified party that are inconsistent with different from or in addition additional to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 appliesindemnifying party), and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with indemnifying party will not without the prior written consent of Indemnifying Party, settlethe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or action by a third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the claim, demand, indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. An Indemnified Party shall promptly give notice (i) If each, a party entitled to indemnification hereunder (the “Indemnified PartyNotice of Indemnification”) notifies the party liable for such indemnification (the “to each Indemnifying Party”) Party after obtaining knowledge of any matter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such Notice of Indemnification promptly shall not affect the indemnification provided under this Article IX except, and only, to the extent such Indemnifying Party shall have been actually prejudiced as a result of such failure or if such Notice of Indemnification is not given to the Indemnifying Party prior the applicable Expiration Date. If an Indemnifying Party assumes the defense of such third party claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to such Indemnifying Party shall have full and complete control over the conduct of such proceeding on behalf of the Indemnified Party and as shall, subject to which the indemnity provided for in provisions of this Section 13.4(a) applies (a “Potential Claim”)9.5, Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Partyproceeding; provided, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided furtherhowever, that if any counsel chosen by such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate conduct such defense shall be reasonably satisfactory to the Indemnified Party; and provided, further, however, that the Indemnifying Party shall not without the written consent of the Indemnified Party consent to the entry of any judgment or enter into any settlement with respect to the matter which (a) does not include a provision whereby the plaintiff or the claimant in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which matter releases the indemnity provided for in this Section 13.4 appliesIndemnified Party from all liability with respect thereto, and Indemnifying Party fails (b) in the case of the Purchaser, does not include any provision that would impose any obligation (including an obligation to assume as soon as reasonably practical refrain from taking action) upon the defense of Indemnified Party, then Seller. The Indemnified Party may contest participate in such proceeding and retain separate co-counsel at its sole cost and expense (orand, with for the prior written consent avoidance of Indemnifying Partydoubt, settle) such cost and expense shall not constitute a Loss for purposes of the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying PartyIndemnification Obligations).

Assumption of Defense. Within thirty (i30) If a party entitled days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to indemnification hereunder (the “Indemnified Entitled Party”) notifies , assume control of the party liable for defense of such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative suit, proceeding or legal proceeding, investigation or allegation adverse to claim. If the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall does not assume on behalf control of Indemnified Party and conduct with due diligence and in good faith such defense, the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Entitled Party shall have the right to cure control such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of defense. The Party not controlling such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and defense may participate therein at its own expense; provided, however, that if the Indemnifying Party assumes control of such defense and provided the Entitled Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Entitled Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Entitled Party solely in connection therewith; provided, further, that if in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel in any one jurisdiction for all Entitled Parties. The Party controlling such claim, demand, defense shall keep the other Party advised of the status of such action, proceedingsuit, investigation proceeding or allegation involves both Indemnifying claim and the defense thereof and shall consider recommendations made by the other Party and Indemnified Party and Indemnified with respect thereto. The Entitled Party shall have reasonably concluded that there may be legal defenses available not agree to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense any settlement of and response to such claim, demand, action, proceedingsuit, investigation proceeding or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with claim without the prior written consent of the Indemnifying Party, settle) the claimwhich consent shall not be unreasonably withheld, demanddelayed, denied or conditioned. The Indemnifying Party shall not agree to any settlement of such action, proceedingsuit, investigation proceeding or allegation at Indemnifying Party’s expense using counsel selected by Indemnified claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Entitled Party and reasonably acceptable to Indemnifying from all liability with respect thereto or that imposes any liability or obligation on the Entitled Party without the prior written consent of the Entitled Party.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party’s ability to exercise its rights under this Agreement, or impair Madden’s right or ability to operate the Company, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If a an indemnifying party entitled to indemnification hereunder (assumes the “Indemnified Party”) notifies the defense of such third party liable for such indemnification (the “Indemnifying Party”) of any claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation adverse to shall conduct such defense diligently, shall have full and complete control over the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and in good faith shall, subject to the investigation and defense thereof and the response thereto and shall be entitledprovisions of this Section 12.4, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the subject indemnified party, and the indemnifying party will not without the written consent of the Potential Claim (subject indemnified party consent to the rights entry of any judgment or enter into any settlement with respect to the owner of matter which does not include a provision whereby the Property at plaintiff or the time of such cure to approve claimant in the manner of such cure) if such cure will not result in additional matter releases the indemnified party from all liability with respect thereto, or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there which may be legal defenses available reasonably expected to it which are inconsistent with or in addition to those available to Indemnifying Partyhave an adverse effect on the indemnified party and does not provide that the indemnified party is without fault, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with respect to an indemnification relating to Taxes, if such settlement could affect the prior written consent Taxes of Indemnifying Party, settlethe Company or the Madden Indemnified Parties for a period or portion thereof beginning on or after the Closing Date. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a third party within thirty (30) the claim, demand, days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. If any action or claim shall be brought or asserted by a third party against an indemnified party in respect of which indemnity may be sought from an indemnifying party, the indemnified party shall promptly notify the indemnifying party in writing (ibut the omission to notify the indemnifying party shall not release such person from any liability which it may have to the indemnified party, except to the extent that such failure materially prejudices the rights of the indemnifying party) If a and the indemnifying party entitled to indemnification hereunder shall assume the defense thereof (the “Indemnified Party”) notifies legal counsel of the indemnifying party liable for such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse must be reasonably acceptable to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”indemnified party), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose payment by the indemnifying party of any such Potential Claim; provided, that Indemnifying Party all reasonable expenses. The indemnified party shall have the right to cure employ separate counsel in any such matter that is action and to participate in the subject defense thereof, but the fees and expenses of such counsel shall be at the expense of the Potential Claim indemnified party, unless (subject a) the employment thereof has been specifically authorized in writing by the indemnifying party; (b) the indemnifying party has failed to assume the rights defense and employ counsel; or (c) the named parties to such action include both the indemnifying party and the indemnified party, and the indemnified party shall have been advised in good faith by its counsel that the representation of the owner indemnifying party and the indemnified party by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case the fees of counsel for the Property at indemnified party shall be paid by the time of indemnifying party. In such cure to approve events, the manner of such cure) if such cure will indemnifying party shall not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to assume the defense of such action on behalf of the indemnified party. The indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be represented liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the indemnified party, which firm shall be designated by advisory counsel the indemnified party in writing. The indemnifying party shall not be liable for any settlement of any such action effected without its own selection and at its own expense; and provided furtherwritten consent, that but if any such claimaction is settled with the indemnifying party's written consent, demand, or if there shall be a final judgment for the plaintiff in any such action, proceeding, investigation the indemnifying party shall indemnify and hold harmless the indemnified party from and against any Damages arising from such settlement or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expensejudgment. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of, or criminal charges against, the indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party’s ability to exercise its rights under this Agreement, or impair Madden’s right or ability to operate any of the Companies, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If a an indemnifying party entitled to indemnification hereunder (assumes the “Indemnified Party”) notifies the defense of such third party liable for such indemnification (the “Indemnifying Party”) of any claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation adverse to shall conduct such defense diligently, shall have full and complete control over the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and in good faith shall, subject to the investigation and defense thereof and the response thereto and shall be entitledprovisions of this Section 12.5, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is the subject of the Potential Claim (subject any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the rights of indemnified party, such consent not to be unreasonably withheld or delayed, and the owner of the Property at the time of such cure to approve the manner of such cure) if such cure indemnifying party will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have without the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settlethe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto or which may reasonably be expected to have an adverse effect on the indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a third party within thirty (30) the claim, demand, days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (the “"Indemnified Party”") notifies the party liable for such indemnification (the “"Indemnifying Party”") of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in this Section 13.4(a) 13.4 applies (a “"Potential Claim”"), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying with counsel reasonably satisfactory to Indemnified Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s 's expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s 's expense using counsel selected by Indemnified Party; provided, that after any such failure by Indemnifying Party which continues for thirty (30) days or more no such contest need be made by Indemnified Party and reasonably acceptable to settlement or full payment of any claim may be made by Indemnified Party without Indemnifying Party's consent and without releasing Indemnifying Party from any obligations to Indemnified Party under this Section 13.4 if, in the written opinion of reputable counsel to Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure, but shall relieve the indemnifying party for any liability for legal fees and expenses incurred prior to the date such notice is given. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair Madden's right or ability to operate either of the Companies, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If a an indemnifying party entitled to indemnification hereunder (assumes the “Indemnified Party”) notifies the defense of such third party liable for such indemnification (the “Indemnifying Party”) of any claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation adverse to shall conduct such defense diligently, shall have full and complete control over the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and in good faith shall, subject to the investigation and defense thereof and the response thereto and shall be entitledprovisions of this Section 12.4, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is the subject of the Potential Claim (subject any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the rights of indemnified party, and the owner of the Property at the time of such cure to approve the manner of such cure) if such cure indemnifying party will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have without the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settlethe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto or which may reasonably be expected to have an adverse effect on the indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a third party within thirty (30) the claim, demand, days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (i) If a An indemnified party entitled shall promptly give notice to indemnification hereunder (the “Indemnified Party”) notifies the each indemnifying party liable for such indemnification (the “Indemnifying Party”) after obtaining knowledge of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided for under this Article X, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if the claim (a) is reasonably likely to result in Section 13.4(aimprisonment or another criminal penalty of the indemnified party, (b) applies is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or materially impair Buyer's right or ability to operate the Company or the Sub S Holding Corporation or the Company's, the Sub S Holding Corporation's or any Subsidiary's right to operate any material part of the Business, or (c) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a “Potential Claim”)conflict. If an indemnifying party assumes the defense of such third-party claim, Indemnifying Party such indemnifying party shall assume agree prior thereto, in writing, that it is liable under this Article X to indemnify the indemnified party in accordance with the terms contained herein in respect of such third-party claim, shall conduct such defense diligently, shall have full and complete control over the conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and in good faith shall, subject to the investigation and defense thereof and the response thereto and shall be entitledprovisions of this Section 10.4, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is the subject of the Potential Claim (subject any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the rights of indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense, and the owner of the Property at the time of such cure to approve the manner of such cure) if such cure indemnifying party will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have without the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settlethe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the claim, demand, indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (the “an Indemnified Party”) Party notifies the party liable for such indemnification (the “Indemnifying Party”) Tenant of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”)this Paragraph 12 applies, Indemnifying Party Tenant shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying with counsel selected by Tenant but reasonably satisfactory to the Indemnified Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying the Indemnified Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party Tenant and the Indemnified Party and the Indemnified Party shall have reasonably concluded been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying PartyTenant, then the Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expensebehalf, and Tenant shall pay or reimburse the Indemnified Party for all Attorney's Fees incurred by the Indemnified Party because of the selection of such separate counsel. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 Paragraph 12 applies, and Indemnifying Party Tenant fails to assume as soon as reasonably practical promptly (and in any event within fifteen (15) days after being notified of the claim, demand, action, proceeding, investigation or allegation) the defense of the Indemnified Party, then the Indemnified Party may contest (oror settle, with the prior written consent of Indemnifying PartyTenant, settlewhich consent will not be unreasonably withheld) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s Tenant's expense using counsel selected by the Indemnified Party; provided, that after any such failure by Tenant which continues for forty-five (45) days or more no such contest need be made by the Indemnified Party and reasonably acceptable settlement or full payment of any claim may be made by the Indemnified Party without Tenant's consent and without releasing Tenant from any obligations to Indemnifying the Indemnified Party under this Paragraph 12 if, in the written opinion of reputable counsel to the Indemnified Party, the settlement or payment in full is clearly advisable.

Assumption of Defense. (i) If a Regarding claims asserted under this Section 4.05 and involving third party entitled to indemnification hereunder (claims, within 20 days after delivery of the “Indemnified Party”) notifies Claim Notice, the party liable for such indemnification (the “Indemnifying Party”) of any claimParty may, demand, action, administrative or legal proceeding, investigation or allegation adverse upon written notice thereof to the Indemnified Party and as Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”)Indemnified Party; provided, however, that the Indemnifying Party shall assume on behalf of not be entitled to control and the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitledentitled to have sole control over any claim to the extent such claim seeks an order, at Indemnifying Party’s sole discretioninjunction or other equitable relief against the Indemnified Party which, to settle if successful, could materially interfere with the business, operations, assets, condition (financial or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject otherwise) or prospects of the Potential Claim (subject Indemnified Party or relates to the rights Taxes reflected or to be reflected in a Tax Return of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that the Indemnified Party have shall provide written notice to the right to be represented by advisory counsel Indemnifying Party of its own selection and election to assume control over the defense of such claim pursuant to this Section 6.05. If the Indemnifying Party does not so assume control of such defense within said 20 day period, the Indemnified Party shall control such defense. The party not controlling such defense (the "Non-controlling Party") shall be entitled to participate therein at its own expense; and provided further, that if any the Indemnifying Party assumes control of such claim, demand, action, proceeding, investigation or allegation involves both defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal conflicting interests or different defenses available with respect to it which are inconsistent with such suit or in addition to those available to Indemnifying Partyproceeding, then the Indemnified Party shall have the right to select a separate counsel reasonably acceptable and to Indemnifying Party assume such legal defenses and otherwise to participate in the investigation and defense of such action, with the reasonable fees and response expenses of counsel to the Indemnified Party being considered "Damages" for purposes of this Agreement. Except in a case of such conflict, the party controlling such defense (the "Controlling Party") shall keep the Non-controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, actioninvoice, proceeding, investigation billing or allegation on its own behalf at Indemnifying Party’s expense. (iiother document evidencing or asserting the same) If any claim, demand, action, proceeding, investigation or allegation arises as to which and shall otherwise cooperate with and assist the indemnity provided for Controlling Party in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then such suit or proceeding. The Indemnified Party may contest (orshall not agree to any settlement of or consent to the entry of any judgment arising from any suit or proceeding without the consent of the Indemnifying Party which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not agree to any settlement of, with or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of Indemnifying the Indemnified Party, settle) which shall not be unreasonably withheld or delayed; provided that the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by consent of the Indemnified Party shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and reasonably acceptable to Indemnifying such settlement or judgment includes a complete release of the Indemnified Party from further liability and has no other adverse effect on the Indemnified Party.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (Within 20 days after delivery of the “Indemnified Party”) notifies Claim Notice, the party liable for such indemnification (the “Indemnifying Party”) of any claimParty may, demand, action, administrative or legal proceeding, investigation or allegation adverse upon written notice thereof to the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”)Party, Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject control of the Potential Claim (subject defense of such suit or proceeding with counsel reasonably satisfactory to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further provided, however, that any Claim relating to Taxes reflected or to be reflected in a Tax Return of Parent or the Buyer or any combined, consolidated or unit or group of which either is a member shall be controlled by the Parent. If the Indemnifying Party does not so assume control of such defense within said 20 day period, the Indemnified Party have shall control such defense. The party not controlling such defense (the right to be represented by advisory counsel of its own selection and "Non-controlling Party") may participate therein at its own expense; and provided further, that if the Indemnifying Party assumes control of such defense and counsel to the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered "Damages" or "Shareholders Damages," as the case may be, for purposes of this Agreement. The party controlling such defense (the "Controlling Party") shall keep the Non- controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, actioninvoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and . The Indemnified Party shall have reasonably concluded that there may be legal defenses available not agree to it which are inconsistent with any settlement of or in addition consent to those available to the entry of any judgment arising from any suit or proceeding without the consent of the Indemnifying Party, then Indemnified which shall not be unreasonably withheld or delayed. The Indemnifying Party shall have not agree to any settlement of, or the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense entry of and response to any judgment arising from, any such claim, demand, action, proceeding, investigation suit or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with proceeding without the prior written consent of Indemnifying the Indemnified Party, settle) which shall not be unreasonably withheld or delayed; provided that the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by consent of the Indemnified Party shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and reasonably acceptable to Indemnifying Partysuch settlement or judgment includes a complete release of the Indemnified Party from further liability and does not contain any admission of liability.

Assumption of Defense. An Indemnified Party shall promptly give notice (i) If each, a party entitled to indemnification hereunder (the “Indemnified PartyNotice of Indemnification”) notifies the party liable for such indemnification (the “to each Indemnifying Party”) Party after obtaining knowledge of any claimmatter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above, demandand, action, administrative or legal proceeding, investigation or allegation adverse if such indemnity shall arise from the claim of a third party and Indemnifying Party provides written notice to the Indemnified Party stating that the Indemnifying Party is responsible for the entire claim within ten (10) days after the Indemnifying Party’s receipt of the applicable Notice of Indemnification, shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such Notice of Indemnification promptly shall not affect the indemnification provided under this Article IX, except and as only to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), extent such Indemnifying Party shall assume have been actually prejudiced as a result of such failure or if such Notice of Indemnification is not given to Indemnifying Party prior the applicable Expiration Date. If an Indemnifying Party assumes the defense of such third party claim, such Indemnifying Party shall have full and complete control over the conduct of such proceeding on behalf of Indemnified Party and shall, subject to the provisions of this Section 9.4(b), have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, further, however, that any counsel chosen by such Indemnifying Party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto and shall be entitledreasonably satisfactory to Indemnified Party; and provided, at Indemnifying Party’s sole discretionfurther, to settle or otherwise dispose of any such Potential Claim; providedhowever, that Indemnifying Party shall have not without the right to cure such matter that is the subject written consent of the Potential Claim (subject Indemnified Party consent to the rights entry of any judgment or enter into any settlement with respect to the owner of matter which (a) does not include a provision whereby the Property at plaintiff or the time of such cure to approve claimant in the manner of such cure) if such cure will not result in additional matter releases Indemnified Party from all liability or material loss of rights to Indemnified Partywith respect thereto, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate (b) in the investigation and defense case of and response Purchaser, does not include any provision that would impose any obligation (including an obligation to such claim, demand, refrain from taking action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then upon Seller. Indemnified Party may contest participate in such proceeding and retain separate co-counsel at its sole cost and expense (orand, with for the prior written consent avoidance of Indemnifying Partydoubt, settle) such cost and expense shall not constitute a Loss for purposes of the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying PartyIndemnification Obligations).

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining Knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any litigation resulting from such claim; PROVIDED, HOWEVER, that failure promptly to give any such notice shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in a criminal penalty or fine against the indemnified party the consequences of which would be reasonably likely to have a material adverse effect on the indemnified party unrelated to the size of such penalty or fine, or (iii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair TKOG's or Canadian Buyer's right or ability to operate the Company. If a an indemnifying party entitled to indemnification hereunder (assumes the “Indemnified Party”) notifies the defense of such third party liable for such indemnification (the “Indemnifying Party”) of any claim, demandsuch indemnifying party shall agree prior thereto in writing that it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, actionshall conduct such defense diligently, administrative or legal proceeding, investigation or allegation adverse to shall have full and complete control over the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and shall, in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s his or her or its sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; PROVIDED, HOWEVER, that is the subject of the Potential Claim (subject any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the rights of the owner of the Property at the time of indemnified party. The indemnified party may participate in such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, proceeding and provided further that Indemnified Party have the right to be represented by advisory retain separate co-counsel of its own selection and at its own expense; sole cost and provided further, expense (except that if any such claim, demand, action, proceeding, investigation the indemnifying party shall be responsible for the fees and expenses of one separate co-counsel for the indemnified party to the extent the indemnified party is advised by its counsel that either (x) the counsel the indemnifying party has selected has a conflict of interest or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that (y) there may be are legal defenses available to it which the indemnified party that are inconsistent with different from or in addition additional to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 appliesindemnifying party), and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with indemnifying party will not without the prior written consent of Indemnifying Party, settlethe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or action by a third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the claim, demand, indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. If any Claim is brought against a Matrix Indemnitee or a Holder Indemnitee and the Claiming Party gives notice to the Indemnifying Party of such Claim, the Indemnifying Party will, unless the Claim involves Taxes (which shall be resolved in accordance with the procedures in 0), be entitled to participate in such Claim and, to the extent that it wishes (unless (i) If such Indemnifying Party is also a party entitled to indemnification hereunder (such Claim and the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Claiming Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and determines in good faith that joint representation would be inappropriate, or (ii) the investigation Indemnifying Party fails to provide reasonable assurance to the Claiming Party of its financial capacity to defend such Claim and provide indemnification with respect to such Claim), to assume the defense thereof of such Claim with counsel reasonably satisfactory to the Claiming Party and, after notice from the Indemnifying Party to the Claiming Party of its election to assume the defense of such Claim, the Indemnifying Party will not, as long as it diligently conducts such defense, be liable to the Claiming Party or the other relevant Holder Indemnitee(s) or Matrix Indemnitee(s) (as applicable) under this Section0for any fees of other counsel or any other expenses with respect to the defense of such Claim, in each case subsequently incurred by the Claiming Party or the other relevant Holder Indemnitee(s) or Matrix Indemnitee(s) (as applicable) in connection with the defense of such Claim, other than their reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Claim, (i) it will be conclusively established for purposes of this Agreement that the Claim (and any resulting Damages) are within the scope of and subject to indemnification by the Indemnifying Party; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Claiming Party's consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other Claims that may be made against the Claiming Party or any other Holder Indemnitee or Matrix Indemnitee (as applicable), and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (iii) the Claiming Party and each relevant Holder Indemnitee or Matrix Indemnitee (as applicable) will have no liability with respect to any compromise or settlement of such Claims effected without its consent. The Claiming Party and any relevant Holder Indemnitee or Matrix Indemnitee shall be entitled to participate (at its expense) in the defense of any Claim assumed by the Indemnifying Party as contemplated herein. If notice is given to an Indemnifying Party of any Claim and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall does not, within ten days after the Claiming Party's notice is given, give notice to the Claiming Party of its election to assume the defense of such Claim, the Indemnifying Party will no longer have the right to cure such matter assume that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Partydefense, and provided further that Indemnified will be bound by any determination made in such Claim or any compromise or settlement effected by the Claiming Party have the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if or any such claim, demand, action, proceeding, investigation other Holder Indemnitee or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expenseMatrix Indemnitee (as applicable). (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any litigation resulting from such claim; provided, however, that failure promptly to give any such notice shall not affect the indemnification provided under this Article XI except to the extent such indemnifying party shall have been prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in a criminal penalty or fine against the indemnified party the consequences of which would be reasonably likely to have a material adverse effect on the indemnified party unrelated to the size of such penalty or fine, or (iii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party's ability to exercise its rights under this Agreement, or impair 3-D's or Buyer's right or ability to operate Company. If a an indemnifying party entitled to indemnification hereunder (assumes the “Indemnified Party”) notifies the defense of such third party liable for such indemnification (the “Indemnifying Party”) of any claim, demandsuch indemnifying party shall agree prior thereto in writing that it is liable under this Article XI to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, actionshall conduct such defense diligently, administrative or legal proceeding, investigation or allegation adverse to shall have full and complete control over the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and shall, in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s his or her or its sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is the subject of the Potential Claim (subject any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the rights of indemnified party. The indemnified party may participate in such proceeding and retain separate co- counsel at its sole cost and expense, and the owner of the Property at the time of such cure to approve the manner of such cure) if such cure indemnifying party will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have without the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settlethe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or action by a third party within thirty (30) days after notice thereof shall have been given to such indemnifying party by the claim, demand, indemnified party shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. An indemnified party shall promptly give notice to each indemnifying party after obtaining knowledge of any matter as to which recovery may be sought against such indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party, shall permit such indemnifying party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such notice promptly shall not affect the indemnification provided under this Article XII, except to the extent such indemnifying party shall have been actually and materially prejudiced as a result of such failure. Notwithstanding the foregoing, an indemnifying party may not assume the defense of any such third-party claim if it does not demonstrate to the reasonable satisfaction of the indemnified party that it has adequate financial resources to defend such claim and pay any and all Losses that may result therefrom, or if the claim (i) is reasonably likely to result in imprisonment of the indemnified party, (ii) is reasonably likely to result in an equitable remedy which would materially impair the indemnified party’s ability to exercise its rights under this Agreement, or impair Madden’s right or ability to operate the Company, or (iii) names both the indemnifying party and the indemnified party (including impleaded parties) and representation of both parties by the same counsel would create a conflict. If a an indemnifying party entitled to indemnification hereunder (assumes the “Indemnified Party”) notifies the defense of such third party liable for such indemnification (the “Indemnifying Party”) of any claim, demandsuch indemnifying party shall agree prior thereto, actionin writing, administrative or legal proceedingthat it is liable under this Article XII to indemnify the indemnified party in accordance with the terms contained herein in respect of such claim, investigation or allegation adverse to shall conduct such defense diligently, shall have full and complete control over the Indemnified Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume conduct of such proceeding on behalf of Indemnified Party the indemnified party and conduct with due diligence and in good faith shall, subject to the investigation and defense thereof and the response thereto and shall be entitledprovisions of this Section 12.5, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure decide all matters of procedure, strategy, substance and settlement relating to such matter proceeding; provided, however, that is the subject of the Potential Claim (subject any counsel chosen by such indemnifying party to conduct such defense shall be reasonably satisfactory to the rights of indemnified party, such consent not to be unreasonably withheld or delayed, and the owner of the Property at the time of such cure to approve the manner of such cure) if such cure indemnifying party will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have without the right to be represented by advisory counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with the prior written consent of Indemnifying Party, settlethe indemnified party consent to the entry of any judgment or enter into any settlement with respect to the matter which does not include a provision whereby the plaintiff or the claimant in the matter releases the indemnified party from all liability with respect thereto or which may reasonably be expected to have an adverse effect on the indemnified party. The indemnified party may participate in such proceeding and retain separate co-counsel at its sole cost and expense. Failure by an indemnifying party to notify the indemnified party of its election to defend any such claim or proceeding by a third party within thirty (30) the claim, demand, days after notice thereof shall be deemed a waiver by such indemnifying party of its right to defend such claim or action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. An Indemnified Party shall promptly give notice (i) If each, a party entitled to indemnification hereunder (the “Indemnified PartyNotice of Indemnification”) notifies the party liable for such indemnification (the “to each Indemnifying Party”) Party after obtaining knowledge of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Party and matter as to which recovery may be sought against such Indemnifying Party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a third party and Indemnifying Party provides written notice to Indemnified Party stating that Indemnifying Party is responsible for the entire claim within ten (10) days after Indemnifying Party’s receipt of the applicable Notice of Indemnification, shall permit such Indemnifying Party to assume the defense of any such claim or any proceeding resulting from such claim; provided, however, that failure to give any such Notice of Indemnification promptly shall not affect the indemnification provided for in Section 13.4(a) applies (a “Potential Claim”)under this Article IX, except and only to the extent such Indemnifying Party shall assume have been actually prejudiced as a result of such failure or if such Notice of Indemnification is not given to Indemnifying Party prior the applicable Expiration Date. If an Indemnifying Party assumes the defense of such third party claim, such Indemnifying Party shall have full and complete control over the conduct of such proceeding on behalf of Indemnified Party and shall, subject to the provisions of this Section 9.5, have the right to decide all matters of procedure, strategy, substance and settlement relating to such proceeding; provided, further, however, that any counsel chosen by such Indemnifying Party to conduct with due diligence and in good faith the investigation and such defense thereof and the response thereto and shall be entitledreasonably satisfactory to Indemnified Party; and provided, at Indemnifying Party’s sole discretionfurther, to settle or otherwise dispose of any such Potential Claim; providedhowever, that Indemnifying Party shall have not without the right written consent of Indemnified Party consent to cure the entry of any judgment or enter into any settlement with respect to the matter which (a) does not include a provision whereby the plaintiff or the claimant in the matter releases Indemnified Party from all liability with respect thereto, and (b) in the case of Purchaser as Indemnifying Party, does not include any provision that would impose any obligation (including an obligation to refrain from taking action) upon Seller. Indemnified Party may participate in such matter that is proceeding and retain separate co-counsel at its sole cost and expense (and, for the subject avoidance of doubt, such cost and expense shall not constitute a Loss for purposes of the Potential Claim Indemnification Obligations). Notwithstanding the forgoing, (subject i) Purchaser, at any time when it believes that a claim for indemnification relates to or arises in connection with any criminal proceeding, indictment or investigation, may assume the rights of the owner of the Property at the time of defense and otherwise deal with such cure to approve the manner of such cure) if such cure will not result claim in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory good faith with counsel of its own selection choice, and at its own expense; and provided furtherbe fully indemnified therefor, that (ii) the Indemnifying Party may not assume the defense of any claim if any such claim, demand, action, proceeding, investigation or allegation involves both an actual conflict of interest exists between Indemnifying Party and Indemnified Party and Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are inconsistent with or in addition to those available to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 appliesprecludes effective joint representation, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then (iii) Indemnified Party may contest (or, with take over the prior written consent defense and prosecution of a claim from Indemnifying Party, settle) the Party if Indemnifying Party has failed or is failing to vigorously prosecute or defend such claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying Party.

Assumption of Defense. (i) If a party entitled to indemnification hereunder (Within 20 days after delivery of the “Indemnified Party”) notifies Claim --------------------- Notice, the party liable for such indemnification (the “Indemnifying Party”) of any claimParty may, demand, action, administrative or legal proceeding, investigation or allegation adverse upon written notice thereof to the Indemnified Party and as Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnified Party. If the Indemnifying Party shall does not so assume on behalf control of such defense within said 20 day period, the Indemnified Party and conduct with due diligence and in good faith shall control such defense. The party not controlling such defense (the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying "Non-controlling Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter that is the subject of the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure") if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party have the right to be represented by advisory counsel of its own selection and may participate therein at its own expense; and provided further, that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered "Damages" or "Company Damages," as the case may be, for purposes of this Agreement. The party controlling such defense (the "Controlling Party") shall keep the Non- controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, actioninvoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding, investigation or allegation involves both Indemnifying Party and Indemnified Party and . The Indemnified Party shall have reasonably concluded that there may be legal defenses available not agree to it which are inconsistent with any settlement of or in addition consent to those available to the entry of any judgment arising from any suit or proceeding without the consent of the Indemnifying Party, then Indemnified which shall not be unreasonably withheld or delayed. The Indemnifying Party shall have not agree to any settlement of, or the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense entry of and response to any judgment arising from, any such claim, demand, action, proceeding, investigation suit or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical the defense of Indemnified Party, then Indemnified Party may contest (or, with proceeding without the prior written consent of Indemnifying the Indemnified Party, settle) which shall not be unreasonably withheld or delayed; provided that the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by consent of the Indemnified Party shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and reasonably acceptable to Indemnifying such settlement or judgment includes a complete release of the Indemnified Party from further liability and has no other adverse effect on the Indemnified Party.

Assumption of Defense. (i) If a party The Indemnifying Party will be entitled to indemnification hereunder (participate in the “Indemnified Party”) notifies the party liable for such indemnification (the “Indemnifying Party”) defense of any claim, demand, action, administrative or legal proceeding, investigation or allegation adverse to the Indemnified Third Party and as to which the indemnity provided for in Section 13.4(a) applies (a “Potential Claim”), Indemnifying Party shall assume on behalf of Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto and shall be entitled, at Indemnifying Party’s sole discretion, to settle or otherwise dispose of any such Potential Claim; provided, that Indemnifying Party shall have the right to cure such matter Claim that is the subject of a notice given by the Potential Claim (subject to the rights of the owner of the Property at the time of such cure to approve the manner of such cure) if such cure will not result in additional liability or material loss of rights to Indemnified Party, and provided further that Indemnified Party pursuant to Section 9.4.1. In addition, the Indemnifying Party will have the right to be represented by advisory control the defense of the Indemnified Party against the Third Party Claim with counsel of its own selection and at its own expense; and provided further, that if any such claim, demand, action, proceeding, investigation or allegation involves both choice reasonably satisfactory to the Indemnified Party so long as: (a) the Indemnifying Party gives written notice to the Indemnified Party within thirty (30) days after the Indemnified Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any and all Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim; (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have adequate financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder; (c) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party; (d) the Indemnified Party has not been advised by counsel that a conflict exists between the Indemnified Party and the Indemnifying Party in connection with the defense of the Third Party Claim; (e) the Third Party Claim does not relate to or otherwise arise in connection with Taxes or any criminal or regulatory enforcement Action; (f) settlement of, an adverse judgment with respect to, or the Indemnifying Party’s conduct of the defense of the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to be materially adverse to the Indemnified Party’s reputation or continuing business interests (including its relationships with current or potential customers, suppliers or other parties material to the conduct of its business); and (g) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. The Indemnified Party shall have reasonably concluded may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim; provided, however, that there may be legal defenses available to it which the Indemnifying Party will pay the reasonable fees and expenses of separate co-counsel retained by the Indemnified Party that are inconsistent with or in addition to those available incurred prior to Indemnifying Party, then Indemnified Party shall have the right to select separate counsel reasonably acceptable to Indemnifying Party to participate in the investigation and defense ’s assumption of and response to such claim, demand, action, proceeding, investigation or allegation on its own behalf at Indemnifying Party’s expense. (ii) If any claim, demand, action, proceeding, investigation or allegation arises as to which the indemnity provided for in this Section 13.4 applies, and Indemnifying Party fails to assume as soon as reasonably practical control of the defense of Indemnified Party, then Indemnified the Third Party may contest (or, with the prior written consent of Indemnifying Party, settle) the claim, demand, action, proceeding, investigation or allegation at Indemnifying Party’s expense using counsel selected by Indemnified Party and reasonably acceptable to Indemnifying PartyClaim.