Common use of Defense Clause in Contracts

Defense. The Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Indemnifying Party will have 10.3.1 Promptly after the right receipt by any person entitled to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt indemnification under this Article X of notice of (i) any claim or (ii) the Third Party Claimcommencement of any action or proceeding, jointly such party (the "Aggrieved Party") will, if claim with respect thereto is made against any other party obligated to provide indemnification pursuant to this Article X (the "Indemnifying Party"), give such Indemnifying Party similarly notified, to elect written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense ofof any such claim or any proceeding or litigation resulting from such claim, any Third unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party Claim at such or there is a conflict of interest between it and the Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume Party in the conduct of the defense of the action and after notice from such action. Failure by the Indemnifying Party to notify the Indemnitee Aggrieved Party of its election to assume defend any such proceeding or action within a reasonable time, but in no event more than fifteen (15) days after written notice thereof shall have been given to the defenseIndemnifying Party, shall be deemed a waiver by the Indemnifying Party will not be liable of its right to defend such action. 10.3.2 If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Indemnitee for Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any legal losses, damages and liabilities caused by or other expenses except as arising out of any settlement of, or any judgment entered in connection with, such claim or litigation. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided below that the Indemnifying Party shall direct and except for control the reasonable costs defense of investigation subsequently incurred by the Indemnitee such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnitee will have Indemnifying Party shall not, in the right defense of such claim or any litigation resulting therefrom, consent to employ its own counsel in entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. 10.3.3 If the Indemnifying Party shall not assume the defense of any such actionclaim or litigation resulting therefrom, but the feesAggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, expenses and other charges legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such counsel will claim or litigation. No settlement of claim or litigation shall be at made without the expense consent of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) which consent shall not be unreasonably withheld. If no settlement of the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it claim or other Indemnitees that are different from or in addition to those available to the Indemnifying Partylitigation is made, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such claim or in which case such litigation and of all expenses, legal or otherwise, as incurred by the Indemnifying Aggrieved Party will not have the right to direct in the defense of against such claim or litigation. 10.3.4 Notwithstanding anything to the contrary herein contained, TRC shall be entitled to control any cleanup, containment, remediation, related proceeding, or other action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party proceeding arising from or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding environmental, health or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at safety liability or any one time for all such indemnified party hazardous materials or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingactivities.

Defense. Unless the Parties otherwise agree, a Party shall assume the primary responsibility for the conduct of the defense of any such claim relating to such Party’s Product, at such Party’s sole expense, and with legal counsel of its choice. The Indemnifying other Party will shall have the right right, but not the obligation, to participate and be independently represented in or, by giving notice to any such suit at its sole option and at its own expense. Each Party shall reasonably cooperate with the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume conducting the defense of the action and after notice from claim. Each Party shall keep the Indemnifying other Party to the Indemnitee hereto reasonably informed of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee all material developments in connection with any such claim, suit or proceeding, and the defenseParties shall reasonably cooperate in conducting the defense of any such claim. The Indemnitee Should Lilly decide not to defend or fail to defend any such claim, suit, or proceedings by a Third Party relating to a Lilly Target within thirty (30) days of notice of such claim, suit, or proceeding, then NextCure will have be entitled to take over, at its option, the right to employ its own counsel in defend such infringement proceedings and the control of any such actiondefense, but the feesat NextCure’s cost and should NextCure decide not to defend or fail to defend any such claim, expenses and other charges suit, or proceedings by a Third Party relating to a NextCure Target within thirty (30) days of notice of such counsel claim, suit, or proceeding, then Lilly will be entitled to take over, at its option, the expense right to defend such infringement proceedings and the control of any such defense; provided, however, that, the Parties shall refer to the JPC any strategy dispute between the Parties with respect to defense of such Indemnitee unless (1) claim, suit or proceeding for good faith discussion and resolution, and, in the employment of counsel by event that the Indemnitee has been authorized in writing by the Indemnifying PartyJPC cannot resolve such strategy, (2a) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will NextCure shall not have the right to direct defend such infringement relating to a Lilly Target, Lilly Compound and/or Lilly Product if, in Lilly’s sole discretion, Lilly (subsequent to such JPC referral) determines such defense should not be made as a matter of strategy and (b) Lilly shall not have the right to defend such infringement relating to a NextCure Target, NextCure Compound and/or NextCure Product if, in NextCure’s sole discretion, NextCure (subsequent to such JPC referral) determines such defense should not be made as a matter of such action on behalf strategy. Neither Party shall enter into any settlement that affects any of the Indemnitee) other Party’s rights or (4) the Indemnifying Party has interests without such other Party’s prior written consent, not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle conditioned or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingdelayed.

Defense. The If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party will shall be entitled to participate in the defense of the Third Party Claim and, if the Indemnifying Party so chooses, to assume the defense of the Third Party Claim. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, then, for so long as the Indemnifying Party defends the Third Party Claim, the Indemnifying Party shall be deemed to have acknowledged its indemnification obligations under this Article 1 with respect to such Third Party Claim, and the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of the Third Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in orthe defense of the Third Party Claim and to employ counsel, at its own expense, separate from the counsel employed by giving notice to the Indemnitee within seven Business Days after receipt of notice Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, including any settlement or compromise of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, provided that Parent shall not settle or compromise any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemniteearising solely as a result of a breach of any representation or warranty for an amount in excess of Parent’s aggregate indemnification obligations under this Article 1, as set forth in Section 8.1(b)(iii), and assume without Buyer’s written consent, which consent may not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense of the action Third Party Claim. Such cooperation shall include the retention and after notice from (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records that are reasonably relevant to the Indemnitee Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defensematerial provided. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by If the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume defense of the commencement Third Party Claim or at any time fails to defend the Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further notice to the Indemnifying Party) have the right to undertake the defense of the actionThird Party Claim. Notwithstanding the foregoing, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party shall not be entitled to defend or Parties. It is understood that settle a Third Party Claim, and the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for will pay the reasonable fees, disbursements attorneys’ fees and other charges related out-of-pocket expenses of more than one separate firm (the Indemnified Party in addition defending or settling a Third Party Claim with respect to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by which the Indemnifying Party promptly as they are incurred. An Indemnifying is obligated to provide indemnification hereunder, where the remedy sought is reasonably expected to have a Material Adverse Effect; provided, however, that in any such event the Indemnified Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying settle the Third Party shall, Claim without the prior written consent of each Indemniteethe Indemnifying Party, settle which consent may not be unreasonably withheld, delayed or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingconditioned.

Defense. The Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party will shall have the right to participate in or, (exercisable by giving written notice to the Indemnitee Indemnified Party within seven Business Days ten (10) days after receipt of notice the Indemnified Party has given a Claim Notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, ) to elect to assume conduct and control, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense ofof the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume keep the defense non-controlling party advised of the action status thereof and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for shall consider in good faith any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred recommendations made by the Indemnitee in connection non-controlling party with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party respect thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Indemnifying Party will Promptly after receipt by an Indemnified Person of notice of any claim or demand or the commencement of any action or proceeding with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify the Indemnitor of such claim or demand or the commencement of such action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the Indemnitor shall so elect, the Indemnitor shall assume the defense of such claim, demand, action or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Person shall reasonably determine that having common counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, demand, action or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action or proceeding and the Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, that the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single or related action or proceeding. For any claim, demand, action or proceeding the defense of which the Indemnitor shall assume, the Indemnified Person shall have the right to participate in or, by giving notice therein and to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim retain its own counsel at such Indemnifying PartyIndemnified Person's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemniteeexcept as otherwise specifically provided in this Section 6.4), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will so long as such participation shall not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection interfere with the defenseIndemnitor's control of such claim, demand, action or proceeding. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties Indemnitor shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemniteethe Indemnified Person, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action action, suit or proceedings (whether or not any Indemnified Party is a party thereto), proceeding in respect of which indemnification may be sought hereunder unless such settlement, compromise or consent includes shall include an unconditional release of each Indemnitee such Indemnified Person from all liability arising or that may arise out of such claim, demand, action or proceeding.

Defense. The Upon receipt of notice under Subsection (a) from the Indemnitee, the Indemnifying Party will have the right duty to participate in oreither compromise or defend, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's its own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and assume the defense in any event not more than twenty (20) days after receipt of the action Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 8 and after notice from of its intention to either compromise or defend such Action. Once the Indemnifying Party gives such notice to the Indemnitee of its election to assume the defenseIndemnitee, the Indemnifying Party will is not be liable to the Indemnitee for the fees of other counsel or any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with such defense, other than the defenseIndemnitee's reasonable costs of investigation and cooperation. The However, the Indemnitee will have the right to employ its own separate counsel in any such action, but and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses and other charges of such counsel will be at the expense of such Indemnitee unless counsel) if: (1i) the employment use of the counsel by the Indemnitee has been authorized in writing chosen by the Indemnifying Party, Party would present such counsel with a conflict of interest; (2ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee has reasonably concluded (based on advice of counsel) concludes that there may be legal defenses available to it or other Indemnitees that are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after receiving the Indemnitee's notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of such Action; (iv) the Indemnifying Party denies or Parties. It is understood fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnitee; provided, however, that in no event shall the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in be obligated to bear the same jurisdiction, be liable for the reasonable fees, disbursements costs and other charges expenses of more than one (1) separate firm (in addition to local counsel) admitted to practice counsel for all of the other Party's Indemnitees in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingAction.

Defense. The In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party will have at its sole cost and expense and with counsel reasonably satisfactory to the right to participate in orIndemnified Party may, by giving upon written notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party ClaimIndemnified Party, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of any such claim or legal proceeding within thirty (30) days after written notice of the action claim is received subject to a reservation of rights to contest its indemnity obligation and after notice obtain reimbursement from the Indemnifying Indemnified Party to the Indemnitee of for its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other costs and expenses except as provided below in defending and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defensesettling same. The Indemnitee will have Indemnified Party shall be entitled to participate in (but not control) the right to employ its own counsel in defense of any such action, but the feeswith its counsel and at its own expense; provided, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Partyhowever, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that if there may be are one or more legal defenses available to it or other Indemnitees the Indemnified Party that are different from or in addition to conflict with those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and if the Indemnifying Party (in which case fails to take reasonable steps necessary to diligently defend the Indemnifying claim after receiving notice from the Indemnified Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) that it believes the Indemnifying Party has not in fact employed counsel failed to do so, the Indemnified Party may assume the defense of such action within a reasonable time after receiving notice of the commencement of the actionclaim; provided, in each of which cases the reasonable feesfurther, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Indemnified Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in may not settle such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemniteethe Indemnifying Party, settle or compromise or which consent to may not be unreasonably withheld. If the entry Indemnified Party assumes the defense of any judgment in any pending or threatened the claim, action or proceedings (whether or not any the Indemnifying Party shall reimburse the Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release for the reasonable fees and expenses of each Indemnitee from all liability arising or that may arise out counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, action with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation but with reimbursement for out-of-pocket costs, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. The Indemnifying Party will have the right shall be entitled to participate in orand, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claimif it so desires, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own of an Action with counsel (which counsel shall be reasonably acceptable satisfactory to the Indemnitee), and assume the defense of the action and after notice from . Once the Indemnifying Party to notifies the Indemnitee of its election to assume the defensedefense of an Action, the Indemnifying Party will is not be liable to the Indemnitee for the fees of other counsel or any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with such defense, other than reasonable costs of investigation. However, the defense. The Indemnitee will shall have the right to employ its own separate counsel and to participate in any such action, but the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses and other charges of such counsel will be at the expense of such Indemnitee unless separate counsel) if: (1i) the employment use of the counsel by the Indemnitee has been authorized in writing chosen by the Indemnifying Party, Party would present such counsel with a conflict of interest; (2ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee has reasonably concluded (based on advice of counsel) concludes that there may be legal defenses available to it or other Indemnitees that are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will shall not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after receiving the Indemnitee's notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of such Action; or (iv) the Indemnifying Party or Parties. It is understood that authorizes the Indemnitee to employ separate counsel at the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingParty's expense.

Defense. (a) The Indemnifying Party will shall have the right, at its expense and at its election, to assume control of the negotiation, settlement and defense of the Claim through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party's reasonable out-of-pocket expenses as a result of such assumption. The election of the Indemnifying Party to assume such control shall be made within ninety (90) days of receipt of notice of Claim, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall have the right to participate in or, by giving notice be informed and consulted with respect to the Indemnitee within seven Business Days after receipt negotiation, settlement or defenses of notice such Claim and to retain counsel to act on its behalf, but the fees and disbursements of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable paid by the Indemnified Party unless the Indemnifying Party consents to Indemniteethe retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend the Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control, and assume the defense Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to the Claim. If any Claim is of a nature such that the Indemnified party is required by applicable law to make a payment to any third party with respect to the Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party shall, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the action and after notice from Indemnified Party under the Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnitee Indemnified Party, the Indemnified Party shall, promptly after receipt of its election the difference from the third party, pay the amount of such difference to the Indemnifying Party. (b) If the Indemnifying Party fails to assume control of the defensedefense of any Claim, the Indemnified Party shall have the exclusive right to consent, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defense of any Claim, the Indemnifying Party will shall not be liable to settle any Claim without the Indemnitee for any legal or other expenses except as provided below and except for written consent of the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Indemnified Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will shall not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle conditioned or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto)delayed, unless such settlement, compromise settlement provides solely for monetary damages or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingother monetary payments.

Defense. The Except as otherwise provided herein, the Indemnifying ------- Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to may elect to assume the defense ofcompromise or defend, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying In demnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemniteethe Indemnified Party), and assume the defense of the action and after notice from any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Indemnitee Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to assume do so as herein provided, or otherwise abandons the defensedefense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any Claim (until such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing defense is assumed by the Indemnifying Party, ) and (2ii) the Indemnitee has costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably concluded (conclude, based on upon advice of its outside legal counsel, that (x) that there may be legal is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to it or other Indemnitees that the Indemnified Party which are different from or in addition additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to then the Indemnitee) between the Indemnitee and the Indemnifying Indemnified Party (in which case the Indemnifying Party will not shall have the right to assume and direct the defense of such action on behalf of the Indemnitee) or (4) Third Party Claim. In such an event, the Indemnifying Party has not in fact employed shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to assume all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to -------- ------- settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of Third Party Claim. If the Indemnifying Party or Parties. It is understood that chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or Parties shall notany books, in connection with any proceeding records or related proceedings in the same jurisdictionother documents within its control that are reasonably necessary or appropriate for such defense, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent subject to the entry receipt of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingappropriate confidentiality agreements.

Defense. The In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person who is not a party to the Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or legal proceeding if (a) the Indemnifying Party acknowledges to the Indemnified Party in writing, within fifteen days after receipt of notice from the Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of such claim, (b) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the right financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not, in the good faith judgment of the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party shall be entitled to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume but not control) the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the feeswith its counsel and at its own expense; provided, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Partyhowever, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that if there may be are one or more legal defenses available to it or other Indemnitees the Indemnified Party that are different from or in addition to conflict with those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and if the Indemnifying Party (in which case fails to take reasonable steps necessary to diligently defend the Indemnifying claim after receiving notice from the Indemnified Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) that it believes the Indemnifying Party has not in fact employed counsel failed to do so, the Indemnified Party may assume the defense of such action within a reasonable time after receiving notice of the commencement of the actionclaim; provided, in each of which cases the reasonable feesfurther, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Indemnified Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in may not settle such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemniteethe Indemnifying Party, settle which consent may not be unreasonably withheld, conditioned or compromise or consent to delayed provided the entry Indemnified Party receives a full and complete release. If the Indemnified Party assumes the defense of any judgment in any pending or threatened the claim, action or proceedings (whether or not any the Indemnifying Party shall reimburse the Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release for the reasonable fees and expenses of each Indemnitee from all liability arising or that may arise out counsels retained by the Indemnified Party and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such claim, action with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such third-party claim in a reasonably prudent manner. The parties agree to render, without compensation, to each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any action, suit or proceeding, whether or not subject to indemnification hereunder.

Defense. The If the facts pertaining to a loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the “Indemnifying Party will have Party” may assume the right to participate in or, defense or the prosecution thereof by giving prompt written notice to the Indemnitee within seven Business Days after receipt Indemnified Party, including the employment of notice of the Third Party Claimcounsel or accountants, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense its cost and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defenseexpense. The Indemnitee will Indemnified Party shall have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such separate from counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurredin any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnified Party shall be at their expense. An The Indemnifying Party will shall not be liable for any settlement of any action or such claim effected without its prior written consent (consent, which consent will shall not be unreasonably withheld). No ; provided that if the Indemnifying Party shalldoes not assume the defense or prosecution of a claim as provided above within thirty (30) days after notice thereof, the Indemnified Party may settle such claim without the prior written consent of each Indemnitee, settle or compromise or consent Indemnifying Party’s consent. The Indemnifying Party shall not agree to the entry a settlement of any judgment in claim which provides for any pending relief other than the payment of monetary damages or threatened claim, action which could have a material precedential impact or proceedings (whether effect on the business or not financial condition of any Indemnified Party is a party thereto), unless such settlement, compromise without the Indemnified Party’s prior written consent. Whether or consent includes an unconditional release of each Indemnitee from all liability arising not the Indemnifying Party chooses to so defend or that may arise out of prosecute such claim, action all the parties hereto shall cooperate in the defense or proceedingprosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Indemnifying Party.

Defense. The Indemnifying Party will have If the right facts relating to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the a Loss arise out a Third Party Claim, jointly with or if there is any other Indemnifying claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party similarly notifiedwithin 15 days following its receipt of the notice of such claim, to elect to assume the defense ofor the prosecution thereof, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own including the employment of counsel (which counsel shall be or accountants, reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party satisfactory to the Indemnitee of Indemnified Party, at its election cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to assume the defense, the Indemnifying Party will take all action (not be liable including settlement) reasonably necessary to protect against further damage or loss with respect to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defenseLoss. The Indemnitee will Indemnified Party shall have the right to employ its own counsel separate from counsel employed by the Indemnity Obligor in any such actionaction and to participate therein, but the fees, fees and expenses and other charges of such counsel will shall be at the expense of such Indemnitee Indemnified Party's own expense, unless (1a) the employment of counsel thereof has been specifically authorized by the Indemnitee Indemnity Obligor, (b) such Indemnified Party has been authorized in writing advised by counsel reasonably satisfactory to the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) Indemnity Obligor that there may be one or more legal defenses available to it or other Indemnitees that which are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to Indemnity Obligor and in the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense reasonable judgment of such action on behalf of the Indemnitee) counsel it is advisable for such Indemnified Party to employ separate counsel, or (4c) the Indemnifying Party Indemnity Obligor has not in fact employed counsel failed to assume the defense of such action within a reasonable time after receiving notice of and employ counsel reasonably satisfactory to the commencement of Indemnified Party. Whether or not the actionIndemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in each of which cases the reasonable feesdefense or prosecution thereof and shall furnish such records, disbursements information and other charges of counsel will testimony and shall attend such conferences, discovery proceedings and trial as may be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or partiestherewith. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will The Indemnity Obligor shall not be liable for any settlement of any action or such claim effected without its prior written consent (consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which consent the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will not be unreasonably withheld). No Indemnifying take no action in connection with any claim that would adversely affect the Indemnified Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingParty.

Defense. The Indemnifying If any action is brought against an indemnified party by a Third Party with respect to a matter subject to indemnification under this Agreement, the indemnifying Party will have the right be entitled to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect and to assume the defense ofthereof to the extent that it may wish, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying indemnifying Party to such indemnified party of the Indemnitee of its indemnifying Party’s election to assume the defensedefense thereof, the Indemnifying indemnifying Party will shall not be liable to the Indemnitee such indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee latter in connection with the defensedefense thereof unless the indemnifying Party has failed to assume and diligently prosecute the defense of such claim. The Indemnitee Notwithstanding any of the foregoing to the contrary, the indemnified party will have the right be entitled to employ select its own counsel and assume the defense of any action brought against it if the indemnifying Party fails to assume or diligently prosecute such defense, the PURCHASE AND SALE AGREEMENT 56 expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of which has been assumed by an indemnifying Party, without the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense consent of such action within a reasonable time after receiving notice of the commencement of the actionindemnifying Party, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will shall not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Upon receipt of notice under Subsection (a) from the Indemnitee, the Indemnifying Party will have the right duty to participate in oreither to compromise or defend, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's its own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and assume the defense in any event not more than twenty (20) days after receipt of the action and after notice from Indemnitee's original notice) notify the Indemnitee in writing of its intention to either compromise or defend such Action. Once the Indemnifying Party to notifies the Indemnitee of its election to assume the defensedefense of an Action, the Indemnifying Party will is not be liable to the Indemnitee for the fees of other counsel or any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with such defense, other than the defenseIndemnitee's reasonable costs of investigation and cooperation. The However, the Indemnitee will shall have the right to employ its own separate counsel and to participate in any such action, but the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses and other charges of such counsel will be at the expense of such Indemnitee unless counsel) if: (1i) the employment use of the counsel by the Indemnitee has been authorized in writing chosen by the Indemnifying Party, Party would present such counsel with a conflict of interest; (2ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee has reasonably concluded (based on advice of counsel) concludes that there may be legal defenses available to it or other Indemnitees that are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will shall not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after receiving the Indemnitee's notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of such Action; (iv) the Indemnifying Party denies or Parties. It is understood that fails to timely admit its obligation to defend and indemnify the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings Action; or (v) in the same jurisdiction, be liable for reasonable opinion of counsel to the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle the claim could result in the Indemnitee becoming subject to injunctive relief or compromise or consent to relief other than the entry payment of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is Damages that could have a party thereto), unless such settlement, compromise or consent includes an unconditional release materially adverse effect on the ongoing business of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingthe Indemnitee.

Defense. (i) In the case of a third party claim, the Indemnifying Party may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, how- ever, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litiga- tion, and as a result of such conflict, the Indemnifying Party’s incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemni- fied Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party’s rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the In- demnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indem- nify the Indemnified Party therefor. The Indemnifying Party will have shall be liable for the right reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to participate the Indemnity Claim or it is determined by a court of competent juris- diction that it is obligated hereunder to provide such indemnification. If the Indemni- fying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in orgood faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal pro- ceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Sub- stances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the de- fense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem ap- propriate, including settling such claim or litigation, after giving notice to the Indemnitee within seven Business Days after receipt of notice Indem- nifying Party, on such terms as the Indemnified Party may deem appropriate. Not- withstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the Third Party Claimlimitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the par- ties, jointly determine who will control the defense and settlement of any such In- demnifiable Claim and how such defense and settlement will be handled, (C) ▇▇▇▇▇▇- ate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemni- fiable Claim as a joint and common defense, including any other joint defense agreement which may be entered into by the parties. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party similarly notifiedParty, to elect to assume the defense ofexclusive right to defend, any Third Party Claim compromise or settle such claim, at such Indemnifying Party's own the expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defenseIn- demnifying Party, but the Indemnifying Party will not be liable bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indem- nifying Party periodically, or upon the Indemnifying Party’s reasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be subject to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs consent of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may such consent not to be legal defenses available to it unreasonably with- held or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the delayed. The Indemnifying Party (may participate in which case the Indemnifying Party will not have the right defense thereof, at its own expense. If, in order to direct preserve existing insurance for a claim against IPC cur- rently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such action on behalf defense so that Dynegy’s insurance rights are not lost, subject to the condition that the insurer accepts the tender of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense claim without reservation of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Partiesrights. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent Notwithstanding anything to the entry of any judgment contrary in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party theretothis Section 9.3(b), unless such settlement, compromise or consent includes an unconditional release any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingSection 5.18.

Defense. Subject to the remaining provisions hereof, the Indemnifying Party may, upon receipt of a Claim Notice relating to a Third Party Claim and at its expense, defend such claim in its own name or, if necessary, in the name of the Claiming Party. The Claiming Party will cooperate with and make available to the Indemnifying Party such assistance and materials as may be reasonably requested of the Claiming Party, and the Claiming Party shall have the right, at its expense, to participate in but not control the defense thereof. The Indemnifying Party will shall have the right to participate in orsettle and compromise any such claim with respect to which it controls the defense only with the consent of the Claiming Party, by giving notice which consent shall not be unreasonably withheld. If the proceeding involves a matter solely of concern to the Indemnitee within seven Business Days after receipt of notice of the Third Claiming Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party in addition to the Indemnitee of its election to assume the defenseclaim for which indemnification under this Article X is being sought, the Indemnifying Claiming Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will shall have the right to employ control the defense and settlement of such additional claim in its own counsel in discretion and with its own counsel. If a firm written offer is made to settle any such action, but Third Party Claim which offer includes a complete release of the fees, expenses Claiming Party and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized its affiliates from any further liability in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee respect thereof and the Indemnifying Party proposes to accept such settlement and agrees in writing to indemnify the Claiming Party for all Losses related thereto and the Claiming Party refuses to consent to such settlement, then: (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4i) the Indemnifying Party has not in fact employed counsel to assume shall be excused from, and the Claiming Party shall be solely responsible for, all further defense of such action within a reasonable time after receiving notice of Third Party Claim; (ii) the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense maximum liability of the Indemnifying Party or Parties. It relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the Claiming Party on such Third Party Claim is understood that greater than the Indemnifying amount of the proposed settlement; and (iii) the Claiming Party or Parties shall notpay all attorneys' fees and legal costs and expenses incurred after the rejection of such settlement by the Claiming Party, in connection with any proceeding or related proceedings in but if the same jurisdictionamount thereafter recovered by such third party from the Claiming Party is less than the amount of the proposed settlement, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will Claiming Party shall be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent such attorneys' fees and legal costs and expenses up to a maximum amount equal to the entry difference between the amount recovered by such third party and the amount of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such the proposed settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The If the facts pertaining to a Loss by a Buyer Indemnified Party or a Company Indemnified Party, as the case may be, arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the applicable Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to may assume the defense ofor the prosecution thereof by written notice to such Buyer Indemnified Party or Seller Indemnified Party, any Third including the employment of counsel or accountants reasonably satisfactory to such Buyer Indemnified Party Claim or Seller Indemnified Party, at such the Indemnifying Party's own expense cost and by such Indemnifying Party's own counsel (which counsel expense. Such Buyer Indemnified Party or Seller Indemnified Party shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel separate from counsel employed by such Indemnifying Party in any such actionaction and to participate therein, but the fees, fees and expenses and other charges of such counsel will employed by such Buyer Indemnified Party or Seller Indemnified Party shall be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the its expense. The Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or such claim effected without its prior written consent, which shall not be unreasonably withheld. The Indemnifying Party shall not agree to a settlement of any claim without the prior written consent (of the Buyer Indemnified Party or Seller Indemnified Party, as the case may be, which consent will not be unreasonably withheld). No Whether or not the Indemnifying Party shall, without the prior written consent of each Indemnitee, settle chooses to so defend or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of prosecute such claim, action all the parties hereto shall cooperate in the defense or proceedingprosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the Buyer Indemnified Party or Seller Indemnified Party, as the case may be.

Defense. The Upon receipt of notice under Subsection (a) from the Indemnitee, the Indemnifying Party will have the right duty to participate in oreither compromise or defend, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's its own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and assume the defense in any event not more than twenty (20) days after receipt of the action Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 8 and after notice from of its intention to either compromise or defend such Action. Once the Indemnifying Party gives such notice to the Indemnitee of its election to assume the defenseIndemnitee, the Indemnifying Party will is not be liable to the Indemnitee for the fees of other counsel or any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with such defense, other than the defenseIndemnitee's reasonable costs of investigation and cooperation. The However, the Indemnitee will have the right to employ its own separate counsel in any such action, but and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses and other charges of such counsel will be at the expense of such Indemnitee unless counsel) if: (1i) the employment use of the counsel by the Indemnitee has been authorized in writing chosen by the Indemnifying Party, Party would present such counsel with a conflict of interest; (2ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee has reasonably concluded (based on advice of counsel) concludes that there may be legal defenses available to it or other Indemnitees that are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after receiving the Indemnitee's notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of such Action; (iv) the Indemnifying Party denies or Parties. It is understood that fails to timely admit its obligation to defend and indemnify the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings Action; or (v) in the same jurisdiction, be liable for reasonable opinion of counsel to the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle the claim could result in the Indemnitee becoming subject to injunctive relief or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.relief other than

Defense. The If any Indemnified Party learns of any matter which may give rise to a claim for indemnification against an Indemnifying Party will have under this Article XI, then the right to participate Indemnified Party shall notify the Indemnifying Party thereof promptly and in or, by giving notice to the Indemnitee any event within seven five (5) Business Days after receipt receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is materially prejudiced thereby. Once the Indemnified Party has given notice of the Third matter to the Indemnifying Party, the Indemnified Party Claimmay, jointly with any other subject to the Indemnifying Party similarly notified, to elect Party's rights to assume the defense ofthereof, defend against the matter in any Third manner it reasonably may deem appropriate. In the event the Indemnifying Party Claim at such notifies the Indemnified Party (after the date the Indemnified Party has given notice of the matter) that the Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume Party is assuming the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defensesuch matter, the Indemnifying Party will not be liable shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnitee for any legal or other expenses except as provided below and except for Indemnified Party. Notwithstanding the reasonable costs of investigation subsequently incurred by foregoing, the Indemnitee in connection with the defense. The Indemnitee will Indemnified Party shall have the right to employ its own counsel in any such actioncase, but the fees, fees and expenses and other charges of such counsel will shall be at the expense of such Indemnitee the Indemnified Party unless (1i) the employment of such counsel by the Indemnitee has shall have been authorized in writing by the Indemnifying Party, (2ii) the Indemnitee has Indemnifying Party shall not have employed counsel to fully and properly take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) the Indemnified Party shall have reasonably concluded (based on advice of counsel) that there may be legal are defenses available to it or other Indemnitees that are different from or in addition additional to those available to one or more of the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party Parties (in which case the Indemnifying Party will Parties shall not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) Indemnified Party with respect to such different defenses), in any of which events such fees and expenses shall be borne by the Indemnifying Party. Assumption of the defense of any matter by the Indemnifying Party has shall not in fact employed counsel to assume prejudice the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense right of the Indemnifying Party or Partiesto claim at a later date that such third party action is not a proper matter for indemnification pursuant to this Article XI. It is understood that the Indemnifying The Indemnified Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not consent to the entry of a judgment with respect to any matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in any pending or threatened claim, action or proceedings (whether or not any the matter releases the Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising Damages with respect thereto, without the written consent of the Indemnified Party (not to be unreasonably withheld or that may arise out of such claim, action or proceedingdelayed).

Defense. (i) In the case of a third party claim, the Indemnifying Party may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party will have shall be liable for the right reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to participate the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in orgood faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnitee within seven Business Days after receipt of notice Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the Third Party Claimlimitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any other joint defense agreement which may be entered into by the parties. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party similarly notifiedParty, to elect to assume the defense ofexclusive right to defend, any Third Party Claim compromise or settle such claim, at such the expense of the Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, but the Indemnifying Party will not be liable bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party's reasonable request, of the status of the litigation. The Indemnified Party's choice of counsel shall be subject to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs consent of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may such consent not to be legal defenses available to it unreasonably withheld or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the delayed. The Indemnifying Party (may participate in which case the Indemnifying Party will not have the right defense thereof, at its own expense. If, in order to direct preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy's insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such action on behalf defense so that Dynegy's insurance rights are not lost, subject to the condition that the insurer accepts the tender of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense claim without reservation of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Partiesrights. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent Notwithstanding anything to the entry of any judgment contrary in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party theretothis Section 9.3(b), unless such settlement, compromise or consent includes an unconditional release any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingSection 5.18.

Defense. The Upon receipt of notice under this Section 12.3 from the Indemnitee, the Indemnifying Party will have the right duty to participate in oreither compromise or defend, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's its own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from selected by the Indemnifying Party (reasonably satisfactory to Indemnitee) such Claim. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Indemnitee Claim pursuant to this Article 12 and of its election intention either to assume compromise or defend such Claim. Once the defenseIndemnifying Party gives such notice to the Indemnitee, the Indemnifying Party will is not be liable to the Indemnitee for the fees of other counsel or any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with such defense, other than the defenseIndemnitee’s reasonable out of pocket Third Party expenses related to its investigation and cooperation, except as otherwise provided in the next sentence. The As to all Claims as to which the Indemnifying Party has assumed control under this Section 12.3(b), the Indemnitee will shall have the right to employ its own separate counsel and to participate in any such action, but the fees, expenses and other charges defense of such counsel will be at the expense of such Indemnitee unless a Claim (1) the employment of counsel by the Indemnitee has been authorized in writing as reasonably directed by the Indemnifying Party) at its own expense; provided, (2) however, that if the Indemnitee has shall have reasonably concluded (concluded, based on advice of upon a written opinion from outside legal counsel) , that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) is a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) interest between the Indemnitee and the Indemnifying Party (and the Indemnitee in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) 31 DB1/ 138274066.17 Claim, the Indemnifying Party has not in fact employed shall pay the fees and expenses of one law firm serving as counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (Indemnitee in addition relation to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Third Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingClaim.

Defense. The Subject to the limitations set forth in this Section 11.5(b), in the event of a Third Party Claim, the Indemnifying Party will shall have the right to participate in or, (exercisable by giving written notice to the Indemnitee Indemnified Party within seven Business Days ten (10) days after receipt of notice the Indemnified Party has given a Claim Notice of the Third Party Claim) to conduct and control, jointly with any other through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s own cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party similarly notified(i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to elect the Indemnified Party in respect thereof, and (ii) if requested by the Indemnified Party, has provided evidence reasonably satisfactory to assume the Indemnified Party of the Indemnifying Party’s financial ability to pay any Loss and Expense resulting from the Third Party Claim; provided, that the Indemnified Party may participate, through separate counsel chosen by it and at its own cost and expense, in the defense ofof the Third Party Claim. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 10-day period, (B) the Indemnifying Party shall fail to conduct such defense diligently, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In any event, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective affiliates and representatives to, cooperate fully in connection with the defense or prosecution of any Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume keep the defense non-controlling party advised of the action status thereof and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for shall consider in good faith any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred recommendations made by the Indemnitee in connection non-controlling party with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party respect thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Indemnifying Party will have If any of the right indemnified parties is made or threatened ------- to participate be made a defendant in oror party to any action or proceeding, judicial or administrative, instituted by giving any third Person for the liability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Paragraph 18 (any such third party action or proceeding being referred to as an "Indemnification Claim"), the indemnified party or parties shall give prompt notice thereof to the Indemnitee within seven Business Days after receipt of indemnifying party; provided -------- that the failure to give such notice of shall not affect the Third Party indemnified party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such actionexpense, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of any such action within a reasonable time after receiving notice of claim or any litigation to which this Paragraph 18.4 may be applicable, by counsel reasonably satisfactory to the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees; provided, disbursements -------- that the indemnified party or parties shall be entitled at any time, at its or their own cost and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will expense (which expense shall not be liable for any settlement recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of any action a conflict of interest, may not adequately represent, the indemnified party or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party theretoparties' interests), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of to participate in such claim, action or proceedingproceeding and to be represented by attorneys of its or their own choosing. If the indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such claim or litigation, shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of a full and complete release from all liability in respect to such claim or litigation.

Defense. The Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect shall be entitled to assume the defense of, and control of any Third Party Claim at such Indemnifying action giving rise to an Indemnified Party's own expense and by claim for indemnification under Article XI unless (x) the Indemnified Party reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such Indemnifying claim for indemnification is likely to be materially detrimental to or materially injure the Indemnified Party's own future business prospects or (y) the claim seeks an injunction or equitable relief against the Indemnified Party that is likely to have a material adverse effect on the business of the Indemnified Party, taken as a whole. If the Indemnifying Party assumes the defense of any Indemnifiable Claim, it shall retain experienced counsel (which reasonably satisfactory to the Indemnified Party and the Indemnified Party may participate in the defense of such claim and employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be reasonably acceptable borne by the Indemnified Party (other than any fees and expenses of such separate counsel that are incurred prior to Indemnitee), and assume the defense of the action and after notice from date the Indemnifying Party to effectively assumes control of such defense). If the Indemnitee of its election to Indemnifying Party does not assume the such defense, the Indemnified Party may compromise or settle the claim on behalf of and for the account and risk of the Indemnifying Party, who shall be bound by the result; provided, however, that the Indemnifying Party will not (i) shall be liable to the Indemnitee for any legal or other expenses except as provided below and except responsible only for the reasonable costs of investigation subsequently incurred by the Indemnitee defense and (ii) shall be entitled to participate (at its cost and with counsel of its choice) in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of any Action in which the IndemniteeIndemnified Party retained the defense thereof under clause (x) or (4y) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement first sentence of the actionthis Section 11.3(b); and provided further, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement or compromise of any action or claim such Action of which the Indemnified Party has retained the defense, that is effected without its prior written consent (which consent will shall not be unreasonably withheldwithheld unreasonably). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Indemnifying Party will shall have the right, at its option (subject to the limitations set forth in Section 7.2(c) below) and at its own expense, by written notice to the Indemnified Party to assume the entire control of, subject to the right of the Indemnified Party to participate (at its expense and with counsel of its choice) in, the defense, compromise or settlement of the Third Party Claim as to which such Notice of Claim has been given, and shall be entitled to appoint a recognized and reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense. If the Indemnifying Party is permitted and elects to assume the defense of a Third Party Claim: (i) the Indemnifying Party shall diligently and in good faith defend such Third Party Claim and shall keep the Indemnified Party reasonably informed of the status of such defense; provided, however, that the Indemnified Party shall have the right to participate approve any settlement, which approval will not be unreasonably withheld, delayed or conditioned; provided, that, in or, by giving the event that the Indemnifying Party provides prior written notice to the Indemnitee within seven Business Days after receipt Indemnified Party of notice of the Third Party Claimany settlement or compromise of, jointly with any other Indemnifying Party similarly notified, or offer to elect to assume the defense ofsettle or compromise, any Third Party Claim at in full and the Indemnified Party withholds its consent to such Indemnifying Party's own expense and by settlement or compromise then, in the event indemnification is ultimately determined to be owing to an Indemnified Party hereunder with respect to such Indemnifying Party's own counsel Third Party Claim, in no event shall indemnification be provided to such Indemnified Party in respect of such Third Party Claim in an amount greater than the amount contained in such settlement or compromise of, or offer to settle or compromise, such Third Party Claim; and (which counsel ii) the Indemnified Party shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from cooperate fully in all respects with the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such actiondefense, but compromise or settlement thereof, including, without limitation, the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice selection of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those , and the Indemnified Party shall make available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee Party all pertinent information and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without documents under its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingcontrol.

Defense. At the request of the Indemnified Party, the Indemnifying Party shall promptly assume the costs of defense of an Indemnifiable Claim. The Indemnifying Party will shall retain experienced counsel reasonably satisfactory to the Indemnified Party and thereafter shall control defense of the claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to participate in or, by giving notice to retain counsel of its choice and control the Indemnitee within seven Business Days after receipt of notice defense of the Third Party Claim, jointly with Indemnifiable Claim under any other of the following circumstances: (i) The Indemnifying Party similarly notified, to elect fails to assume the defense of, any Third of an Indemnifiable Claim within five days after receiving written notice of the existence of the claim; or (ii) The Indemnifying Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable agrees to Indemnitee), and assume the defense of an Indemnifiable Claim but either reserves its rights to challenge, or does not upon request acknowledge in writing, its obligation to indemnify the action party seeking indemnity with respect to the Indemnifiable Claim; or (iii) The persons against whom the Indemnifiable Claim shall have been brought, asserted or threatened (including any impleaded parties) include both the Indemnified Party and after notice from the Indemnifying Party to and the Indemnitee of its election to assume the defense, the Indemnifying Indemnified Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred is advised by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be one or more legal defenses available to it or other Indemnitees the Indemnified Party that are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and . If the Indemnifying Party (in which case does not assume such defense or the Indemnifying Indemnified Party will not have has the right to direct control the defense of such action the Indemnifiable Claim, the Indemnified Party may compromise or settle the Indemnifiable Claim on behalf of and for the Indemnitee) or (4) account and risk of the Indemnifying Party has not in fact employed counsel Party, who shall be bound by the result. In all cases, the party without the right to assume control the defense of such action within a reasonable time after receiving notice the Indemnifiable Claim may participate in the defense at its own expense. The parties shall cooperate in the defense of the commencement of the action, in each of all third party claims which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Partiesmay give rise to Indemnifiable Claims hereunder. It is understood that the Indemnifying Party or Parties shall not, in In connection with the defense of any proceeding claim, each party shall make available to the party controlling such defense, any books, records or related proceedings other documents within its control that are reasonably requested in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out course of such claim, action or proceedingdefense.

Defense. The If any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party will shall have the right and shall upon the written request of the Indemnified Party, defend any Actions brought against the Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. In any such action or proceeding, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, or (b) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to potential conflicts of interests between them. The Parties shall cooperate and may participate in orthe defense of all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense, (i) it shall be conclusively established for purposes of this Agreement that the claims made in the Action are within the scope of and subject to indemnification, but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b), and (ii) no compromise or settlement of such claims may be effected by giving the Indemnifying Party without the Indemnified Party's written consent (which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. If written notice is given to an Indemnifying Party of the commencement of any Action and the Indemnifying Party does not, within twenty (20) days after the Indemnified Party's written notice is given, give written notice to the Indemnitee within seven Business Days after receipt of notice of the Third Indemnified Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defensedefense of such Action, the Indemnifying Party will not shall be liable to the Indemnitee for bound by any legal determination made in such Action or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred any compromise or settlement effected by the Indemnitee in Indemnified Party. In connection with the defense. The Indemnitee will have the right to employ its own counsel in defense of any such actionclaim, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those each Party shall make available to the Indemnifying PartyParty controlling such defense, (3) a conflict any books, records or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action other documents within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood its control that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings are reasonably requested in the same jurisdiction, be liable course of or necessary or appropriate for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingdefense.

Defense. The Indemnifying Party will have (a) Promptly after the right receipt by any person entitled to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt indemnification under Section 9.2 or 9.3 herein of notice of (i) any claim or (ii) the Third Party Claimcommencement of any action or proceeding, jointly such party (the "Aggrieved Party") will, if the claim with respect thereto is made against any other party obligated to provide indemnification pursuant to Section 9.2 or 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party similarly notified, to elect written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense ofof any such claim or any proceeding or litigation resulting from such claim, any Third unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party Claim at such or there is a conflict of interest between it and the Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume Party in the conduct of the defense of the action and after notice from such action. Failure by the Indemnifying Party to notify the Indemnitee Aggrieved Party of its election to assume defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the defenseIndemnifying Party, shall be deemed a waiver by the Indemnifying Party will not be liable of its right to defend such action. (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Indemnitee for Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any legal losses, damages and liabilities caused by or other expenses except as arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided below that the Indemnifying Party shall direct and except for control the reasonable costs defense of investigation subsequently incurred by the Indemnitee such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnitee will have Indemnifying Party shall not, in the right defense of such claim or any litigation resulting therefrom, consent to employ its own counsel in entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party shall not assume the defense of any such actionclaim or litigation resulting therefrom, but the feesAggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, expenses and other charges legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such counsel will claim or litigation. No settlement of claim or litigation shall be at made without the expense consent of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will shall not be unreasonably withheld). No If no settlement of the claim or litigation is made, the Indemnifying Party shall, without shall promptly reimburse the prior written consent of each Indemnitee, settle or compromise or consent to Aggrieved Party for the entry amount of any judgment rendered with respect to such claim or in any pending such litigation and of all expenses, legal or threatened claimotherwise, action as incurred by the Aggrieved Party in the defense against such claim or proceedings litigation. (whether or not any Indemnified Party is a d) The rights to indemnification hereunder shall apply to claims made by either party thereto), unless such settlement, compromise or consent includes an unconditional release against the other whereby written notice of each Indemnitee from all liability arising or that may arise out the claim has been made and delivered within the period of such claim, action or proceedingthe applicable statute of limitations.

Defense. The Indemnifying Party will shall have the right to direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party or, regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or proceed ing, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or settlement of any such action or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in or, by giving notice and consent (which consent shall not be unreasonably withheld) to the Indemnitee within seven Business Days after receipt settlement or assume or reassume the defense of notice such claim or proceeding. Notwithstanding the foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in con nection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense shall pursue such defense diligently and promptly. The parties shall cooperate in 48 57 the defense of all Third Party Claims. In connection with the defense of any Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel each party shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those make available to the Indemnifying Partyparty controlling such defense any books, (3) a conflict records or potential conflict exists (based on advice other documents within its control that are reasonably requested in the course of counsel or necessary or appropriate for such defense, provided appropriate arrangements are made to safeguard the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense confidentiality of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingmaterials.

Defense. Upon receipt of notice under Section 11.3.1 (Notice) from the Indemnitee, the Indemnifying Party will have the duty to either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee), such Claim. The Indemnifying - 41 - [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Party will promptly (and in any event not more than [*] after receipt of the Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Claim pursuant to this Article 11 (Indemnification; Insurance) and of its intention either to compromise or defend such Claim. Once the Indemnifying Party gives such notice to the Indemnitee, (a) the Indemnifying Party will have the right to participate in or, by giving notice to control the Indemnitee within seven Business Days after receipt defense and settlement of notice of the Third Party such Claim, jointly with any other Indemnifying Party similarly notified, subject to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense this Section 11.3 (Indemnification Procedures) and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from b) the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will is not be liable to the Indemnitee for the fees of other counsel or any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with such defense, other than the defenseIndemnitee’s reasonable expenses of investigation and cooperation. The Any Indemnitee will have the right be entitled to employ its own counsel in any such actionparticipate in, but not control, the fees, expenses defense of any Claim and other charges to retain counsel of its choice for such counsel purpose; provided that such retention will be at the Indemnitee’s own cost and expense of such Indemnitee unless (1i) the employment of Indemnifying Party has failed to assume the defense and retain counsel by in accordance with this Section 11.3.2 (Defense) (in which case the Indemnitee has been authorized in writing by indemnified Party will control the defense at the Indemnifying Party’s cost and expense), or (2ii) the Indemnitee has reasonably concluded (based on advice interests of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case with respect to such Claim are sufficiently adverse to prohibit the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in representation by the same jurisdictioncounsel of both Parties under any legal requirement, be liable for the reasonable feesethical rules, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingequitable principles.

Defense. The Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a person other Indemnifying Party similarly notifiedthan the Indemnified Party, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the sole cost and expense of the Indemnifying Party (or, in the case of the Stockholders' Representative, at the sole cost and expense of the Stockholders), may, upon written notice to the Indemnified Party, assume the defense of any such claim or Parties. It is understood that legal proceeding if the Indemnifying Party or Parties shall not, acknowledges to the Indemnified Party in connection with any proceeding or related proceedings in writing the same jurisdiction, be liable for the reasonable fees, disbursements and other charges obligation of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred(or in the case of the Stockholders' Representative, the Stockholders) to indemnify the Indemnified Party with respect to all elements of such claim. An If the Indemnifying Party will not be liable for any settlement assumes the defense of any action such claim or claim effected without its written consent (which consent will not be unreasonably withheld). No legal proceeding, the Indemnifying Party shallshall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party (or in the case of the Stockholders' Representative, the sole cost and expense of the Stockholders) shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of each Indemniteethe Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, settle with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or compromise litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or consent litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the entry Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense (or in the case of the Stockholders' Representative, at the expense of the Stockholders). If the Indemnifying Party (or, in the case of the Stockholders' Representative, the Stockholders) thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise the Indemnifying Party (or, in the case of the Stockholders, the Stockholders' Representative) shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of settle such claim, action or proceedingthird party claim in a reasonably prudent manner.

Defense. The Indemnifying Party indemnifying party will have the right be entitled to participate in orin, and to ------- the extent that it may elect by giving written notice delivered to the Indemnitee within seven Business Days indemnified party promptly after receipt of receiving the notice of the Third Party Claimdescribed in Section 6.6, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense ofof any third party claim, any Third Party Claim at action or suit, with counsel satisfactory to such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee)indemnified party; but, and assume if the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel defendants in any such action, but action include both the fees, expenses indemnified party and other charges of such counsel will be at the expense of such Indemnitee unless (1) indemnifying party and the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or and/or other Indemnitees indemnified parties that are different from or in addition additional to those available to the Indemnifying Partyindemnifying party, (3) a conflict the indemnified party or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party parties will not have the right to direct select separate counsel to assert such legal defenses and otherwise to participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (a) the indemnified party has employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence, (b) the indemnifying party has not employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after receiving notice of the commencement of the actionsuit, in each of which cases action or proceeding or (c) the reasonable fees, disbursements and other charges indemnifying party has authorized the employment of counsel will be for the indemnified party at the expense of the Indemnifying Party indemnifying party; and except that, if clause (a) or Parties. It (c) is understood that applicable, such liability will be only in respect of the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition counsel referred to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified clause (a) or (c). The indemnifying party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for agree to any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened a third party claim, action or proceedings (whether or suit that does not any Indemnified Party is include a party thereto), unless such settlement, compromise or consent includes an unconditional full release of each Indemnitee from any further liability on the party of the indemnified party with respect to all liability arising or that may arise out matters at issue. The indemnifying party will not agree to any settlement of such a third party claim, action or proceedingsuit without the indemnified party's written consent; but the indemnified party will not unreasonably withhold its consent to any settlement solely for monetary damages to be paid by the indemnifying party.

Defense. The Indemnifying If the matter with respect to which a Party will have seeks indemnification (the right to participate in or, by giving notice to "Indemnitee") involves a claim asserted against the Indemnitee within seven Business Days by a third party, promptly after receipt by the Indemnitee of notice of the Third commencement of any action, it will notify the other Party Claim(the "Indemnitor") in writing of the commencement thereof but the omission so to notify the Indemnitor will not relieve the Indemnitor from any liability which it may have to the Indemnitee unless the Indemnitor is prejudiced by such omission. In case any such action shall be brought against the Indemnitee and it shall notify the Indemnitor of the commencement thereof, jointly with any other Indemnifying Party similarly notifiedthe Indemnitor shall be entitled to participate in, and, to elect the extent that it may wish to assume the defense ofthereof, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own with counsel (which counsel shall be reasonably acceptable satisfactory to the Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party Indemnitor to the Indemnitee of its election to assume the defensedefense thereof, the Indemnifying Party will Indemnitor shall not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The defense thereof unless (i) the Indemnitee will shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to this sentence, (ii) the Indemnitor shall not have employed counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time, (iii) the Indemnitor and its counsel do not actively and vigorously pursue the defense of such action, or (iv) the Indemnitor has authorized the employment of counsel for the Indemnitee at the expense of the Indemnitor; provided, however, that the Indemnitee shall have the right to employ counsel to represent it if, in its own reasonable judgment, it is advisable for it to be represented by separate counsel in any such actionbecause separate defenses are available, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) because a conflict or potential conflict of interest exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (Indemnitor in which case respect to such claim, and in such event the Indemnifying Party will not have the right to direct the defense fees and expenses of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed separate counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will shall be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed paid by the Indemnifying Party promptly as they are incurredIndemnitor. An Indemnifying Party In such circumstance, the Indemnitee shall designate the counsel. The Indemnitor will not be liable to the Indemnitee for any settlement of any action or claim effected without the consent of the Indemnitor and the Indemnitor may not unreasonably withhold its written consent (which consent to any settlement. The Indemnitor will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in or enter into any pending settlement or threatened claim, action or proceedings (whether or compromise any claim which does not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee of a full release of each Indemnitee from all liability arising with respect to such claim or that may arise out of such claim, action or proceedinglitigation.

Defense. The Indemnifying Party will have If the right facts pertaining to participate in ora Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnitee Indemnified Party within seven Business Days after twenty (20) days following its receipt of the notice of the Third Party Claimsuch claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense ofor the prosecution thereof, any Third Party Claim including the employment of counsel or accountants at such Indemnifying Party's own expense its cost and by such Indemnifying Party's own counsel expense; provided, however, that the Indemnity Obligor may assume the defense or prosecution thereof only if (which counsel shall be i) it provides evidence reasonably acceptable to Indemnitee), the Indemnified Party that it will have the financial resources to defend the claim and assume satisfy its indemnification obligations; (ii) it obtains counsel which is reasonably satisfactory to the Indemnified Party; (iii) the third party claim involves only money damages and does not seek an injunction or other equitable relief; (iv) it conducts the defense of the action claim actively and after notice from diligently; and (v) it keeps the Indemnifying Indemnified Party informed of all material developments and events relating thereto. Notwithstanding the foregoing, for the avoidance of doubt, the Indemnity Obligor shall have no obligation to defend any claim of any third party alleging that any Current Customer Deliverable infringes any Intellectual Property of a third party to the Indemnitee of its election to assume extent the defense, the Indemnifying Party will Plaintiff or Counterclaim-Plaintiff does not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized specifically allege in writing by that the Indemnifying Party, Current Customer Deliverables infringe such Intellectual Property (2) even if the Indemnitee Indemnity Obligor has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel previously elected to assume the defense of such claim, provided that if the Indemnity Obligor elects to discontinue its defense of any such claim pursuant to this sentence, the Indemnity Obligor must provide prompt notice to the Indemnified Parties of its election to discontinue the defense of such claim). The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action within a reasonable time after receiving notice and to participate therein, but the fees and expenses of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of such counsel will shall be at the expense of Indemnified Party’s own expense. Whether or not the Indemnifying Party Indemnity Obligor chooses so to defend or Partiesprosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. It is understood The Indemnity Obligor shall have the right to settle, adjust or compromise such claim; provided, however, that the Indemnifying Indemnified Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable or obligated for any settlement such settlement, adjustment or compromise of any action or such claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingconsent.

Defense. The Indemnifying Party will shall have the right to participate in orright, by giving upon written notice to the Indemnitee Indemnified Party within seven Business Days after thirty (30) days of receipt of timely notice from the Indemnified Party in respect of a claim by any Person other than the Parties arising out of or involving a Loss by such Person against an Indemnified Party (other than a Tax Claim asserted against any Landos Indemnified Party) (a “Third Party Claim”), jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be thereof at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed counsel selected by the Indemnifying Party promptly and reasonably satisfactory to the Indemnified Party. L▇▇▇▇▇ shall control the defense of any Tax Claim brought against any Landos Indemnified Party. 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 5.4(b), the Indemnified Party shall have the sole right to assume the defense of such Third Party Claim. The party not controlling the defense of the Third Party Claim shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such party unless, in the written opinion of outside counsel to the Indemnified Party, it is advisable for the Indemnified Party to be represented by separate counsel due to actual or potential conflicts of interest, in which case the Indemnified Party shall have the right to employ counsel to represent it and in that event the reasonable documented out-of-pocket fees and expenses of such separate counsel shall be paid by the Indemnifying Party. The party not controlling the Third Party Claim (the “Non Controlling Party”) shall reasonably cooperate with the party controlling the Third Party Claim (the “Controlling Party”) in such defense and make available to the Controlling Party all witnesses, pertinent records, materials and information in the Non Controlling Party’s possession or under the Non Controlling Party’s control relating thereto as they are incurred. An Indemnifying is reasonably required by the Controlling Party; provided, however, that such actions and cooperation by the Non Controlling Party will not be liable for unduly disrupt the operations of the Non Controlling Party’s business or cause the Non Controlling Party to waive any settlement statutory or common law privileges, breach any confidentiality obligations owed to Third Parties or otherwise cause any confidential information of any action or claim effected without its written consent (which consent will not be unreasonably withheld)the Non Controlling Party to become public. No Indemnifying The Controlling Party shallshall not, without the prior written consent of each Indemniteethe Non Controlling Party (which consent shall not be unreasonably withheld, settle conditioned or delayed), enter into any settlement or compromise or consent to the entry of any judgment in with respect to such Third Party Claim; provided, however, that, if an Indemnifying Party is proposing to enter into any pending settlement or threatened claimcompromise or consent to the entry of any monetary judgment with respect to such Third Party Claims, action or proceedings (whether or not any such consent of Indemnified Party is a party thereto), unless shall not be required if (i) the Indemnifying Party agrees to pay or cause to be paid any amounts payable pursuant to such settlement, compromise or consent judgment and such settlement, compromise or judgment includes no admission of liability by or other obligation on the part of the Indemnified Party, and (ii) such settlement compromise or judgment includes an unconditional written release by the claimant or plaintiff of each Indemnitee the Indemnified Party from all liability arising or that may arise out in respect of such claim, action or proceedingThird Party Claim.

Defense. The Indemnifying Party will have (a) In connection with any claim that may give rise to indemnity under this Agreement resulting from or arising out of any claim or legal proceeding by a person other than the right to participate in orIndemnitee, by giving the Indemnitor, may, upon written notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party ClaimIndemnitee, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party any such claim or legal proceeding with counsel reasonably acceptable to the Indemnitee (confirmation of its election which not to be unreasonably delayed), provided that (i) the Indemnitor may only assume the defense, the Indemnifying Party will not be liable control of such defense if (A) it acknowledges in writing to the Indemnitee for that any legal damages, fines, costs or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by liabilities that may be assessed against the Indemnitee in connection with such third party claim constitute Losses for which the Indemnitee shall be indemnified pursuant to this Section 6 or Section 7.2, (B) the ad damnum in such third party claim, taken together with the estimated costs of defense thereof and the claimed amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the then remaining unused portion of the Cap (as defined in Section 6.6(b)), and (C) in the case of a claim against a Buyer Indemnitee, an adverse resolution of the third party claim would not have a material adverse effect on the goodwill or reputation of the Buyer or the business, operations or conduct of the Surviving Corporation and (ii) the Indemnitor may not assume control of the defense of any third party claim involving Taxes or criminal liability or in which equitable relief is sought against the Indemnitee. If the Indemnitor does not, or is not permitted under the terms hereof to, so assume control of the defense of a third party claim, the Indemnitee shall control such defense. The Indemnitee will have party not controlling such defense (the right to employ “Non-controlling Party”) may participate in such defense at its own counsel in any expense. The party controlling such action, but defense (the fees, expenses and other charges “Controlling Party”) shall keep the Non-controlling Party advised of the status of such counsel will be at third party claim and the expense 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 third party claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice third party claim. The fees and expenses of counsel to the IndemniteeIndemnitee with respect to a third party claim shall be considered Losses for purposes of this Agreement if (i) between the Indemnitee controls the defense of such third party claim pursuant to the terms of this Section 6.5 or (ii) the Indemnitor assumes control of such defense and the Indemnitee and the Indemnifying Party (in which case Indemnitor have conflicting interests or different defenses available with respect to such third party claim. Neither the Indemnifying Party will not have the right Securityholders’ Representative nor any Securityholder shall agree to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of, or the entry of any action or judgment arising from, any third party claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemniteethe Buyer, settle provided that the consent of the Buyer shall not be required if the Securityholders’ Representative agrees in writing to pay any amounts payable pursuant to such settlement or compromise judgment and such settlement or consent judgment includes a complete release of the Buyer Indemnitees from further liability and has no other adverse effect on the Buyer. Except as provided in Section 6.5(b), the Buyer shall not agree to any settlement of, or the entry of any judgment arising from, any such third party claim without the prior written consent of the Securityholders’ Representative, which shall not be unreasonably withheld, conditioned or delayed. (b) Notwithstanding the other provisions of this Section 6.5, if a customer or supplier of the Company or CMS asserts (other than by means of a lawsuit) that a Buyer Indemnitee is liable to such third party for a monetary or other obligation which may constitute or result in any pending Losses for which a Buyer Indemnitee may be entitled to indemnification pursuant to this Section 6 or threatened claimSection 7.2, action or proceedings and the Buyer reasonably determines that it has a valid business reason to fulfill such obligation, then (whether or not any Indemnified Party is i) the Buyer shall be entitled to satisfy such obligation, up to a party thereto)maximum amount of $500,000, unless such settlement, compromise without prior notice to or consent includes an unconditional release from the Securityholders’ Representative, (ii) the Buyer may subsequently make a claim for indemnification in accordance with the provisions of each Indemnitee from all liability arising this Section 6, and (iii) the Buyer shall be reimbursed, in accordance with the provisions of this Section 6, for any such Losses for which it is entitled to indemnification pursuant to this Section 6 or that may arise out Section 7.2 (subject to the right of such claimthe Securityholders’ Representative to dispute the Buyer’s entitlement to indemnification, action or proceedingthe amount for which it is entitled to indemnification, under the terms of this Section 6).

Defense. (i) In the case of a third party claim, the Indemnifying Party may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party’s incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party’s rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party will have shall be liable for the right reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to participate the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in orgood faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnitee within seven Business Days after receipt of notice Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the Third Party Claimlimitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any other joint defense agreement which may be entered into by the parties. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party similarly notifiedParty, to elect to assume the defense ofexclusive right to defend, any Third Party Claim compromise or settle such claim, at such the expense of the Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, but the Indemnifying Party will not be liable bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party’s reasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be subject to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs consent of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may such consent not to be legal defenses available to it unreasonably withheld or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the delayed. The Indemnifying Party (may participate in which case the Indemnifying Party will not have the right defense thereof, at its own expense. If, in order to direct preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such action on behalf defense so that Dynegy’s insurance rights are not lost, subject to the condition that the insurer accepts the tender of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense claim without reservation of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Partiesrights. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent Notwithstanding anything to the entry of any judgment contrary in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party theretothis Section 9.3(b), unless such settlement, compromise or consent includes an unconditional release any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingSection 5.18.

Defense. The Except as otherwise provided herein, the Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to may elect to assume the defense ofcompromise or defend, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemniteethe Indemnified Party), and assume the defense of the action and after notice from any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Indemnitee Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to assume do so as herein provided, or otherwise abandons the defensedefense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party will not be liable pursuant to the Indemnitee for any legal or other expenses except as provided below and except for terms of this Agreement. Notwithstanding anything to the reasonable costs of investigation subsequently incurred by the Indemnitee contrary contained herein, in connection with any Third Party Claim in which the defense. The Indemnitee will have Indemnified Party shall reasonably conclude, based upon the right to employ written advice of its own counsel counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in any such action, but the fees, expenses and other charges conduct of the defense of such counsel will be at the expense of such Indemnitee unless Third Party Claim, or (1y) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal are specific defenses available to it or other Indemnitees that the Indemnified Party which are different from or in addition additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to then the Indemnitee) between the Indemnitee and the Indemnifying Indemnified Party (in which case the Indemnifying Party will not shall have the right to assume and direct the defense and compromise of such action on behalf of Third Party Claim insofar as it relates to the Indemnitee) or (4) Indemnified Party. In such an event, the Indemnifying Party has not in fact employed shall pay the reasonable fees and disbursements of counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties and the Indemnified Party provided that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, not be liable for the reasonable fees, disbursements fees and other charges expenses of more than one separate firm (in addition to counsel for the Indemnified Parties other than local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such feesNotwithstanding the foregoing, disbursements and other charges will be reimbursed by neither the Indemnifying Party promptly as they nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are incurred. An Indemnifying Party will not be liable for any paid in full by the party settling or compromising such claim and the settlement or compromise includes a complete release of any action the other party or claim effected without its written parties hereto) over the objection of the other, provided, however, that consent (which consent will to settlement or compromise shall not be unreasonably withheld). No In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shallmay each participate, without at its own expense, in the prior written consent defense of each Indemniteesuch Third Party Claim. If the Indemnifying Party chooses to defend any claim, settle or compromise or consent the Indemnified Party shall make available to the entry Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingappropriate confidentiality agreements.

Defense. The Except as otherwise provided herein, the Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to may elect to assume the defense ofcompromise or defend, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemniteethe Indemnified Party), and assume the defense of the action and after notice from any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Indemnitee Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to assume do so as herein provided, or otherwise abandons the defensedefense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party will not be liable pursuant to the Indemnitee for any legal or other expenses except as provided below and except for terms of this Agreement. Notwithstanding anything to the reasonable costs of investigation subsequently incurred by the Indemnitee contrary contained herein, in connection with any Third Party Claim in which the defense. The Indemnitee will have Indemnified Party shall reasonably conclude, based upon the right to employ written advice of its own counsel counsel, that (x) there is a conflict of interest between the Indemnifying Party and the 57 Indemnified Party in any such action, but the fees, expenses and other charges conduct of the defense of such counsel will be at the expense of such Indemnitee unless Third Party Claim or (1y) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal are specific defenses available to it or other Indemnitees that the Indemnified Party which are different from or in addition additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim. In such an event, the Indemnifying Party shall indemnify the Indemnified Party for the fees and disbursements of counsel to each of the IndemniteeIndemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) between over the Indemnitee objection of the other; PROVIDED, HOWEVER, that consent to settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party (may each participate, at its own expense, in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) Third Party Claim. If the Indemnifying Party has not chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding anything to the contrary contained in fact employed counsel this paragraph (b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Indemnified Party shall, subject to the terms and conditions of this Article X, have the right to assume the defense of such action within a reasonable time after receiving notice of Third Party Claim; PROVIDED, HOWEVER, that in the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood event that the Indemnifying Party or Parties subsequently elects to assume the defense of such Third Party Claim, then the provisions set forth in this paragraph (b) shall not, in connection with any proceeding or related proceedings in be applicable and the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent subject to the entry terms and conditions of any judgment in any pending or threatened claimthis Article X, action or proceedings (whether or not any indemnify the Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out for any costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of such claim, action or proceedingThird Party Claim.

Defense. The Indemnifying Party will have In the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, event any Third Party Claim at shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters covered by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel event shall be reasonably acceptable to Indemnitee), and assume promptly notify the defense other Party in writing of the action and demand, claim or lawsuit. Within thirty (30) days after written notice from by the Indemnified Party (the “Notice”) to an Indemnifying Party to of such demand, claim or lawsuit, except as provided in the Indemnitee of its election to assume the defensenext sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be liable withheld. The Indemnified Party shall have the right, at its own expense, to participate in the Indemnitee for defense of any legal suit, action or other expenses except as provided below proceeding brought against it with respect to which indemnification may be sought hereunder; provided, if (i) the named parties to any such proceeding (including any interpleaded parties) include both the Indemnifying Party and except the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such actionIndemnified Party, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1ii) the employment of counsel by the Indemnitee such Indemnified Party has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party authorization will not have the right to direct the defense of such action on behalf of the Indemnitee) be unreasonably withheld, or (4iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of time; then, the commencement of Indemnified Party shall have the action, in each of which cases the reasonable fees, disbursements and other charges of right to retain its own counsel will be at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or Partieslawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. It is understood If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within thirty (30) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or Parties lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed paid by the Indemnifying Party promptly as they are incurredon a current basis. An Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party’s defense of the action is actually prejudiced by such failure. The assumption of the defense or the non-assumption of the defense, by the purported Indemnifying Party will not be liable for any settlement of any action or claim effected without affect such party’s right to dispute its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent obligation to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingprovide indemnification hereunder.

Defense. The Indemnifying Party will have the right (i) Within thirty (30) days after delivery of an Indemnification Notice with respect to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the a Third Party Claim, jointly the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party; provided that (A) the Indemnifying Party may only assume control of such defense if (1) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other Liabilities that may be assessed against the Indemnified Party in connection with such Third Party Claim constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article IX and (2) the ad damnum in such Third Party Claim, taken together with the estimated costs of defense thereof and the Claimed Amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the amount of Losses for which the Indemnifying Party is potentially liable under this Article IX in connection with such Third Party Claim, and (B) the Indemnifying Party may not assume control of the defense of any Third Party Claim (I) by a Governmental Entity involving criminal Liability or (II) in which equitable relief (other than incidental equitable relief in any pleadings seeking such remedies as may be deemed appropriate by the court) is sought against the Indemnified Party or any of its Affiliates. The Indemnified Party is hereby authorized (but not obligated) prior to and during the thirty (30) day period referred to in the preceding sentence to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect its interests. (ii) If the Indemnifying Party similarly notified, to elect so elects to assume the defense of a Third Party Claim as permitted under Section 9.4(b)(i), then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof unless the Indemnified Party reasonably concludes (upon the advice of outside counsel) that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Claim, in each case such that it is in appropriate for a single outside counsel to represent both parties. Subject to Section 9.4(b)(iii), the Non-controlling Party may participate in the defense of any Third Party Claim at its own expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that the Controlling Party shall control such defense in all respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to the Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim at unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party's own expense Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Indemnified Party and its Affiliates from further Liability, (3) involves no admission of wrongdoing by such the Indemnified Party or any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. If the Indemnifying Party's own counsel (which counsel shall be reasonably acceptable Party is not permitted to Indemnitee)under the terms of this Agreement, and chooses not to, or does not, assume the defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the action and after notice from the Indemnifying Indemnified Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will shall have the right to employ its own counsel in any defend, compromise or settle such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it Third Party Claim or other Indemnitees that are different from or in addition to those available consent to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice entry of counsel judgment with respect to the Indemnitee) between the Indemnitee and the Indemnifying such Third Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be Claim at the expense of the Indemnifying Party; provided, however, the Indemnified Party shall not compromise or Parties. It is understood that settle such Third Party Claim or consent to the Indemnifying entry of judgment with respect to such Third Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, Claim without the prior written consent of each Indemniteethe Indemnifying Party, settle which consent shall not be unreasonably withheld, conditioned or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingdelayed.

Defense. The In the event any person or entity not a party to this Agreement shall make a demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential loss, damage or expense comes to the attention of any party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice or aware of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten days after notice by the Indemnified Party (the "Notice") to an Indemnifying Party will have of such demand, claim or lawsuit, except as provided in the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defensenext sentence, the Indemnifying Party will not be liable shall have the option, at its sole cost and expense, to the Indemnitee for any legal or other expenses except as provided below and except retain counsel for the reasonable costs Indemnified Party, to defend any such demand, claim or lawsuit, provided that counsel who shall conduct the defense of investigation subsequently incurred such demand, claim or lawsuit shall be approved by the Indemnitee in connection with the defenseIndemnified Party whose approval shall not unreasonably be withheld. The Indemnitee will Indemnified Party shall have the right to employ right, at its own counsel expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (a) the named parties to any such actionproceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party's obligation to indemnify), but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless or (1b) the employment of counsel by the Indemnitee such Indemnified Party has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4c) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of time; then, the commencement of Indemnified Party shall have the action, in each of which cases the reasonable fees, disbursements and other charges of right to retain its own counsel will be at the sole cost and expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties Party, which costs and expenses shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed paid by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld)on a current basis. No Indemnifying Party shallParty, without in the prior written consent defense of each Indemniteeany such demand, settle claim or compromise or lawsuit, shall consent to the entry of any judgment in or enter into any pending or threatened settlement without the consent of the Indemnified Party; provided, however, that if a firm written offer is made by the third party to settle any claim, action or proceedings which involves only the payment of cash (whether or not any United States dollars) and the claimant provides to the Indemnified Party is a party thereto)general release in a form reasonably acceptable to the Indemnified Party from all liability, unless and the Indemnifying Party proposes to accept (and pay in full the amount of ) such settlement but the Indemnified Party refuses to consent to such settlement, compromise or consent includes an unconditional release then: (i) the Indemnifying Party shall be excused from, and the Indemnified Party shall be solely responsible for, all further defense costs related to such third-party claim; (ii) the maximum reimbursement amount relating to such third-party claim shall be the amount of each Indemnitee the proposed settlement (plus any defense costs not paid by the Indemnifying Party prior to the rejection of the settlement) if the amount thereafter recovered from all liability arising or the Indemnified Party on such claim is greater that may arise out the amount of such claim, action or proceeding.the proposed settlement; and;

Defense. The If any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party will shall have the right and shall upon the written request of the Indemnified Party, defend any Actions brought against the Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to the Indemnified Party and, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. In any such action or proceeding, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, or (b) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to potential conflicts of interests between them. The Parties shall cooperate and may participate in orthe defense of all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense (i) it shall be conclusively established for purposes of this Agreement that the claims made in the Action are within the scope of and subject to indemnification but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b); and (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party's written consent (which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by giving the Indemnifying Party. If written notice is given to an Indemnifying Party of the commencement of any Action and the Indemnifying Party does not, within twenty (20) days after the Indemnified Party's written notice is given, give written notice to the Indemnitee within seven Business Days after receipt of notice of the Third Indemnified Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defensedefense of such Action, the Indemnifying Party will not shall be liable to the Indemnitee for bound by any legal determination made in such Action or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred any compromise or settlement effected by the Indemnitee in Indemnified Party. In connection with the defense. The Indemnitee will have the right to employ its own counsel in defense of any such actionclaim, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those each Party shall make available to the Indemnifying PartyParty controlling such defense, (3) a conflict any books, records or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action other documents within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood its control that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings are reasonably requested in the same jurisdiction, be liable course of or necessary or appropriate for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingdefense.

Defense. OF CLAIMS -- The Indemnifying Party will have the right Company shall be entitled to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt defense of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect Indemnifiable Claim or to assume the defense ofthereof, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own with counsel (which counsel shall be reasonably acceptable satisfactory to Indemnitee); provided, and assume however, that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the defense use of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred counsel chosen by the Company to represent Indemnitee in connection would present such counsel with an actual or potential conflict, (b) the defense. The Indemnitee will have the right to employ its own counsel named parties in any such action, but Indemnifiable Claim (including any impleaded parties) include both the fees, expenses Company and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the and Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) shall conclude that there may be one or more legal defenses available to it him or other Indemnitees her that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) Company or (4c) any such representation by such counsel would be precluded under the Indemnifying Party has applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate law firm (in addition plus, if applicable, local counsel with respect to local counselany particular Indemnifiable Claim) admitted to practice in such jurisdiction at any one time for all such indemnified party or partiesthe Company's expense. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any action threatened or claim pending Indemnifiable Claim effected without its the Company's prior written consent (which consent will not be unreasonably withheld)consent. No Indemnifying Party shallThe Company shall not, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry effect any settlement of any judgment in any threatened or pending Indemnifiable Claim that Indemnitee is or threatened claim, action or proceedings (whether or not any Indemnified Party is could have been a party thereto), unless such settlement, compromise or consent settlement solely involves the payment of money and includes an a complete and unconditional release of each Indemnitee from all liability arising or on any claims that may arise out are the subject matter of such claimIndemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided, action or proceedinghowever, that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

Defense. The Indemnifying If any action discussed in Section 10.5 is brought against an indemnified party by a Third Party, the indemnifying Party will have the right be entitled to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect and to assume the defense ofthereof, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own with counsel (which counsel shall be reasonably acceptable to Indemnitee)the indemnified party, and assume to the defense of the action extent that it may wish, and after notice from the Indemnifying indemnifying Party to such indemnified party of the Indemnitee of its indemnifying Party’s election to assume the defensedefense thereof, the Indemnifying indemnified party shall have the right to participate, at its own expense, in the defense of such claim; provided that the indemnifying Party will shall not be liable to the Indemnitee such indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee latter in connection with the defensedefense thereof unless the indemnifying Party has failed to assume and diligently prosecute the defense of such claim. The Indemnitee indemnifying Party will have keep the right indemnified party reasonably informed of the status of any such Third Party action. Notwithstanding any of the foregoing to employ the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying Party fails to assume and diligently prosecute such defense, the expenses of such defense to be paid by the indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement or compromise with respect to a claim either (a) without the consent of the indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment, settlement or compromise involves only the payment of monetary damages by the indemnifying Party (which monetary damages are less than or equal to any cap applicable thereto), does not require any payment by or impose an injunction or other equitable relief or any other obligation upon the indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or enter into any settlement or compromise of any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of which has been assumed and diligently pursued by an indemnifying Party, without the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense consent of such action within a reasonable time after receiving notice of the commencement of the actionindemnifying Party, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will shall not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Except as otherwise provided herein, the Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to may elect to assume the defense ofcompromise or defend, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemniteethe Indemnified Party), and assume the defense of the action and after notice from any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Indemnitee Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to assume do so as herein provided, or otherwise abandons the defensedefense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party will not be liable pursuant to the Indemnitee for any legal or other expenses except as provided below and except for terms of this Agreement. Notwithstanding anything to the reasonable costs of investigation subsequently incurred by the Indemnitee contrary contained herein, in connection with any Third Party Claim in which the defense. The Indemnitee will have Indemnified Party shall reasonably conclude, based upon the right to employ written advice of its own counsel counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in any such action, but the fees, expenses and other charges conduct of the defense of such counsel will be at the expense of such Indemnitee unless Third Party Claim, or (1y) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal are specific defenses available to it or other Indemnitees that the Indemnified Party which are different from or in addition additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to then the Indemnitee) between the Indemnitee and the Indemnifying Indemnified Party (in which case the Indemnifying Party will not shall have the right to direct the defense of be represented by counsel selected by it. In such action on behalf of the Indemnitee) or (4) an event, the Indemnifying Party has not in fact employed shall pay the reasonable fees and disbursements of counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties and the Indemnified Party provided that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, not be liable for the reasonable fees, disbursements fees and other charges expenses of more than one separate firm (in addition to counsel for the Indemnified Parties other than local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such feesNotwithstanding the foregoing, disbursements and other charges will be reimbursed by neither the Indemnifying Party promptly nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full (subject to the Sellers' Basket or the WRF Basket, as they are incurred. An applicable) by the party settling or compromising such claim, the settlement or compromise includes a complete release of the other party or parties hereto and, in the case of a settlement or compromise by the Indemnified Party, the Indemnifying Party will not be liable for any has abandoned the defense of such Third Party Claim) over the objection of the other, provided, however, that consent to settlement of any action or claim effected without its written consent (which consent will compromise shall not be unreasonably delayed or withheld). No In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party shallmay each participate, without at its own expense, in the prior written consent defense of each Indemniteesuch Third Party Claim. If the Indemnifying Party chooses to defend any claim, settle or compromise or consent the Indemnified Party shall make available to the entry Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingappropriate confidentiality agreements.

Defense. The Indemnifying Party will have If the right facts relating to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt a Loss or Company Loss arise out of notice of the a Third Party Claim, jointly with or if there is any other Indemnifying claim against a third party available by virtue of the circumstances of the Loss or Company Loss, the Indemnity Obligor shall, by giving written notice to the Indemnified Party similarly notifiedwithin 15 days following its receipt of the notice of such claim, to elect to assume the defense ofor the prosecution thereof, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own including the employment of counsel (which counsel shall be or accountants, reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party satisfactory to the Indemnitee of Indemnified Party, at its election cost and expense; PROVIDED, HOWEVER, that during the interim the Indemnified Party shall use its best efforts to assume the defense, the Indemnifying Party will take all action (not be liable including settlement) reasonably necessary to protect against further damage or loss with respect to the Indemnitee for any legal Loss or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defenseCompany Loss. The Indemnitee will Indemnified Party shall have the right to employ its own counsel separate from counsel employed by the Indemnity Obligor in any such actionaction and to participate therein, but the fees, fees and expenses and other charges of such counsel will shall be at the expense of such Indemnitee Indemnified Party's own expense, unless (1a) the employment of counsel thereof has been specifically authorized by the Indemnitee Indemnity Obligor, (b) such Indemnified Party has been authorized in writing advised by counsel reasonably satisfactory to the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) Indemnity Obligor that there may be one or more legal defenses available to it or other Indemnitees that which are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to Indemnity Obligor and in the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense reasonable judgment of such action on behalf of the Indemnitee) counsel it is advisable for such Indemnified Party to employ separate counsel, or (4c) the Indemnifying Party Indemnity Obligor has not in fact employed counsel failed to assume the defense of such action within a reasonable time after receiving notice of and employ counsel reasonably satisfactory to the commencement of Indemnified Party. Whether or not the actionIndemnity Obligor defends or prosecutes such claim, all the parties hereto shall cooperate in each of which cases the reasonable feesdefense or prosecution thereof and shall furnish such records, disbursements information and other charges of counsel will testimony and shall attend such conferences, discovery proceedings and trial as may be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or partiestherewith. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will The Indemnity Obligor shall not be liable for any settlement of any action or such claim effected without its prior written consent (consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss or Company Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which consent the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will not be unreasonably withheld). No Indemnifying take no action in connection with any claim that would adversely affect the Indemnified Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingParty.

Defense. The Promptly after receipt by an Indemnified Party of notice of a possible action, suit, proceeding or claim referred to in Section 7.01 hereof, such Indemnified Party, if a claim in respect thereof is to be made against the Indemnifying Party under such Section, shall provide the Indemnifying Party with written particulars thereof; provided that failure to provide the Indemnifying Party with such particulars shall not relieve such Indemnifying Party from any liability which it might have on account of the indemnity provided for in this Article Seven except insofar as such failure shall prejudice such Indemnifying Party. The Indemnified Party shall also provide to the Indemnifying Party copies of all relevant documentation and, unless the Indemnifying Party assumes the defence thereof, shall keep such Indemnifying Party advised of the progress thereof and will have discuss with the right Indemnifying Party all significant actions proposed. An Indemnifying Party shall be entitled, at its own expense, to participate in or(and, by giving notice to the Indemnitee within seven Business Days after receipt extent that it may wish, to assume) the defence of notice any such action, suit, proceeding or claim but such defence shall be conducted by counsel of good standing approved by the Third Party ClaimIndemnified Party, jointly with any other such approval not to be unreasonably withheld. Upon the Indemnifying Party similarly notified, to elect notifying the Indemnified Party of its election so to assume the defense of, any Third Party Claim at defence and retaining such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defensecounsel, the Indemnifying Party will shall not be liable to the Indemnitee Indemnified Party for any legal or other expenses except as provided below and except subsequently incurred by it in connection with such defence other than for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defenseinvestigation. The Indemnitee will have the right to employ its own counsel in any If such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing defence is assumed by the Indemnifying Party, it shall, through the course thereof, provide copies of all relevant documentation to the Indemnified Party, keep such Indemnified Party advised of the progress thereof and shall discuss with the Indemnified Party all significant actions proposed. No Indemnifying Party shall enter into any settlement without the consent of the Indemnified Party, but such consent shall not be unreasonably withheld. If such defence is not assumed by the Indemnifying Party, the Indemnifying Party shall not be liable for any settlement made without its consent, but such consent shall not be unreasonably withheld. Notwithstanding the foregoing, an Indemnified Party shall have the right, at the Indemnifying Party's expense, to employ counsel of its own choice in respect of the defence of any such action, suit, proceeding or claim if (2a) the Indemnitee employment of such counsel has reasonably concluded been authorized by the Indemnifying Party in connection with such defence; or (based on advice of counselb) counsel retained by the Indemnifying Party or the Indemnified Party shall have advised the Indemnified Party that there may be legal defenses defences available to it or other Indemnitees that which are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case event and to that extent, the Indemnifying Party will shall not have the right to assume or direct the defense of such action defence on behalf of the IndemniteeIndemnified Party) or that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party; or (4c) the Indemnifying Party has shall not in fact have assumed such defence and employed counsel to assume the defense of such action therefor within a reasonable time after receiving notice of the commencement of the such action, in each of which cases the reasonable feessuit, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Indemnifying If any such action is brought against an indemnified party, the indemnifying Party will have the right be entitled to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect and to assume the defense ofthereof to the extent that it may wish, any Third Party Claim at with counsel reasonably satisfactory to such Indemnifying Party's own expense and indemnified party, by giving written notice to the indemnified party within thirty (30) days of its receipt of written notice of such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee)action from the indemnified party, and assume the defense of the action and after such notice from the Indemnifying indemnifying Party to such indemnified party of the Indemnitee of its indemnifying Party’s election to assume the defensedefense thereof, the Indemnifying indemnifying Party will shall not be liable to the Indemnitee such indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee latter in connection with the defense. The Indemnitee will have defense thereof unless the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying indemnifying Party has not in fact employed counsel failed to assume the defense of such action within a reasonable time after receiving notice claim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the commencement foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any action brought against it if (i) the actionindemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and the indemnified party in connection with the defense of such action or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the indemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, in each case, with the expenses of which cases such defense to be paid by the reasonable feesindemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, disbursements the indemnified party will in good faith cooperate with and other charges assist the indemnifying Party in the prosecution or defense of counsel will be such indemnified claim at no unreasonable out of pocket expense to the expense indemnified party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the Indemnifying Party indemnified party, which consent shall not be unreasonably withheld, or Parties. It is understood that (b) unless such judgment or settlement includes as an unconditional term thereof the Indemnifying Party giving by the claimant or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition plaintiff to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for enter into any settlement of any action or claim effected such action, the defense of which has been assumed by an indemnifying Party, without its written the consent (of such indemnifying Party, which consent will shall not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Indemnifying ​ (a) Each Party will shall promptly notify the other Party of any actual or potential claim alleging that the Research, Development, Manufacture, or Commercialization of any Licensed Product infringes, misappropriates, or otherwise violates any Patent Rights, Know-How, or other intellectual property rights of any Third Party (“Third Party Infringement”). In any such instance, the Parties shall as soon as practicable thereafter discuss in good faith the best response to such notice of Third Party Infringement, and, subject to Section 3.6, Gilead shall have the first right (but not the obligation) to defend any such claim of Third Party Infringement, at Gilead’s sole discretion, cost, and expense, and Hookipa shall have the right to participate be represented in any such action by counsel of its own choice at Hookipa’s sole cost and expense. ​ CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[***]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. (b) If Gilead declines or fails to assert its intention to defend any such claim of Third Party Infringement within [***] days following receipt or, by giving as applicable, sending of a notice pursuant to Section 11.4(a), then Hookipa shall have the Indemnitee within seven Business Days after receipt right (but not the obligation) to defend such claim of notice of the Third Party ClaimInfringement at Hookipa’s sole discretion, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense cost and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee)expense, and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will Gilead shall have the right to employ its own counsel be represented in any such actionaction by counsel of its own choice at Gilead’s sole cost and expense. ​ (c) In no event shall either Party settle or otherwise compromise any Third Party Infringement by admitting that any Patent Right included within the Licensed Technology is invalid or unenforceable, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel explicitly approved by the Indemnitee has been authorized other Party in writing by writing. In the Indemnifying Partyevent that Gilead, (2) subject to Hookipa’s prior approval, enters into any settlement with respect to any actual or potential claim of Third Party Infringement which includes the Indemnitee has reasonably concluded (based on advice acceptance of counsel) that there may be legal defenses available any license to it Patent Rights, Know-How, or other Indemnitees that are different from intellectual property rights owned or in addition to those available to the Indemnifying Party, (3) a conflict otherwise Controlled by any Third Party and necessary or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable useful for the reasonable feesResearch, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party Development, Manufacture, or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement Commercialization of any action or claim effected without its written consent (which consent will not Licensed Product, such settlement shall further be unreasonably withheldsubject to Section 9.5(c). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.​

Defense. The If within 10 calendar days after an Indemnitee provides ------- Notice to the Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the any Third Party Claim, jointly with any other the Indemnitee receives Notice from the Indemnifying Party similarly notified, to elect that such Indemnifying Party has elected to assume the defense of, any of such Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defenseClaim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defensedefense thereof. The Indemnitee will have shall be entitled to participate in the right defense of such Third Party Claim and to employ its own counsel in any for such action, but the fees, expenses and other charges of such counsel will be purpose at the sole cost and expense of such Indemnitee unless (1) Indemnitee. Without the employment prior written consent of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case , the Indemnifying Party will not have enter into any settlement of any Third Party Claim which would lead to liability or create any financial or other obligation on the right part of the Indemnitee for which the Indemnitee is not entitled to direct indemnification hereunder, or which would impose any injunctive or other equitable remedy on the defense Indemnitee. If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of such action a financial or other obligation on behalf the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnitee) or (4) and the Indemnifying Party has not in fact employed counsel desires to assume accept and agree to such offer, the defense Indemnifying Party will give Notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within 10 calendar days after its receipt of such action within a reasonable time after receiving notice of Notice, the commencement of the actionIndemnitee may continue to contest or defend such Third Party Claim and, in each of which cases such event, the reasonable fees, disbursements and other charges of counsel will be at the expense maximum liability of the Indemnifying Party or Parties. It is understood that the Indemnifying to such Third Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges Claim will be reimbursed the amount of such settlement offer, plus reasonable costs and expenses paid or incurred by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent Indemnitee up to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out date of such claim, action or proceedingnotice.

Defense. The Indemnifying Party will have the right procedures to participate in or, be followed by giving notice any party with respect to the Indemnitee within seven Business Days indemnification hereunder regarding claims by third persons shall be as follows: 49 (a) Promptly after receipt by any party of notice of the Third Party Claimcommencement of any action or the assertion of any claim by a third person which the party receiving such notice has reason to believe may result in a claim by it for indemnity pursuant to this Agreement, jointly with such party (each, an "Indemnified Party") shall give a notice of such action or claim to the other party against whom indemnification pursuant hereto is sought (each, an "Indemnifying Party"), setting forth in reasonable detail the nature of such action or claim, including copies of any other written correspondence from such third party to such Indemnified Party. The failure to give notice as required by the immediately preceding sentence shall not result in a waiver of any right to indemnification hereunder except to the extent the Indemnifying Party similarly notifiedis actually and materially prejudiced by reason of such failure or delay. The indemnifying Party may, to elect to at its own expense, assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume control the defense of any claim for which it has received notice in accordance with this Section 13.5 and notify the action and Indemnified Party of such assumption. The Indemnified Party shall be entitled to participate therein after notice from such assumption, the Indemnifying Party costs of such participation following such assumption to the Indemnitee of be at its election to assume the own expense. Upon assuming such defense, the Indemnifying Party will not be liable shall have full rights to the Indemnitee for enter into any legal monetary compromise or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in settlement which case the Indemnifying Party will not have the right to direct the defense of such action on behalf is dispositive of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of matters involved; provided, however, that no such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will settlement shall be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, made without the prior written consent of each Indemniteethe Indemnified Party, settle or which shall not be unreasonably withheld; (b) If the Indemnifying Party does not assume the defense of any claim promptly after receiving notice thereof by the Indemnified Party, the Indemnified Party may assume and control the defense of and contest such action with counsel chosen by it and approved by the Indemnifying Party, which approval shall not be unreasonably withheld. The Indemnifying Party shall be entitled to participate in the defense of such action, the cost of such participation to be at its own expense. The Indemnifying Party shall be obligated to pay the reasonable attorneys' fees and expenses of the Indemnified Party to the extent that such fees and expenses relate to claims as to which indemnification is due under this Section 13.5(b). The Indemnified Party shall have full rights to dispose of such action and enter into any monetary compromise or settlement; provided, however, that no such settlement shall be made without the prior written consent to of the entry Indemnifying Party, which shall not be unreasonably withheld; and (c) Both the Indemnifying Party and the Indemnified Party shall reasonably cooperate fully (but not including the waiver of any judgment privileged communication) with one another in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlementconnection with the defense, compromise or consent includes an unconditional release settlement of each Indemnitee from all liability arising any such claim or that may arise out of such claim, action or proceedingaction.

Defense. The Indemnifying In the event any person or entity not a party to this Agreement shall make a demand or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party will have in respect of matters embraced by the right to participate in orindemnity under this Agreement, by giving notice to then the Indemnitee within seven Business Days after receipt of notice of the Third Indemnified Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from promptly notify the Indemnifying Party of the demand, claim or lawsuit. Within fifteen (15) days after delivery of the Indemnification Notice to the Indemnitee Indemnifying Party of its election to assume such demand, claim or lawsuit, except as provided in the defensenext sentence, the Indemnifying Party will not be liable shall have the option, at its sole cost and expense, to the Indemnitee for any legal or other expenses except as provided below and except retain counsel for the reasonable costs Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who shall conduct the defense of investigation subsequently incurred such demand, claim or lawsuit shall be approved by the Indemnitee in connection with the defenseIndemnified Party whose approval shall not unreasonably be withheld or delayed. The Indemnitee will Indemnified Party shall have the right to employ right, at its own counsel expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named Parties to any such actionproceeding (including any impleaded Parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them (other than differing interests associated with an Indemnifying Party’s obligation to indemnify), but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless or (1ii) the employment of counsel by the Indemnitee such Indemnified Party has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time fifteen (15) days after receiving notice delivery of the commencement of Indemnification Notice; then, the action, in each of which cases Indemnified Party shall have the reasonable fees, disbursements and other charges of right to retain its own counsel will be at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or Partieslawsuit, shall consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. It is understood In the event that the Indemnifying Party shall fail to respond within 15 days after delivery of the Indemnification Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or Parties lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed paid by the Indemnifying Party promptly as they are incurredon a current basis. An Failure to provide an Indemnification Notice shall not limit the rights of any party to indemnification, except to the extent that the Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingactually prejudiced thereby.

Defense. The Indemnifying An indemnifying Party will shall, except as provided in the immediately following sentence and the last sentence of this paragraph, assume the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such actionClaim, but the fees, expenses fees and other charges expense of such counsel will shall be at the expense of such Indemnitee unless indemnified Party unless: (1i) the employment indemnifying Party and the indemnified Party shall have mutually agreed to the retention of counsel such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may same counsel would be legal defenses available inappropriate due to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict actual or potential conflict exists (based on advice of counsel to the Indemnitee) differing interests between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Partiesthem. It is understood agreed that the Indemnifying indemnifying Party or Parties shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements fees and other charges expenses of more than one separate firm (in addition to any local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All Parties and that all such fees, disbursements fees and other charges will expenses shall be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying The indemnifying Party will shall not be liable for any settlement of any action or claim proceeding effected without its written consent, but if settled with such consent (which consent will not be unreasonably withheld)or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No Indemnifying indemnifying Party shall, without the prior written consent of each Indemniteethe indemnified Party, settle or compromise or consent to the entry effect any settlement of any judgment in any pending or threatened claim, action or proceedings (whether or not proceeding in respect of which any Indemnified indemnified Party is or could have been a party thereto)and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless such settlement, compromise or consent it includes an unconditional release of each Indemnitee from such indemnified Party of all liability arising or on claims that may arise out are the subject of such claimproceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, action or proceeding(2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.

Defense. The Indemnifying An indemnifying Party will shall, except as provided in the immediately following sentence and the last sentence of this paragraph, assume the defense of such Claim, with counsel reasonably satisfactory to the indemnified Party to represent the indemnified Party in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified Party shall have the right to retain its own counsel and participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such actionClaim, but the fees, expenses fees and other charges expense of such counsel will shall be at the expense of such Indemnitee unless indemnified Party unless: (1i) the employment indemnifying Party and the indemnified Party shall have mutually agreed to the retention Exhibit 10.103 of counsel such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may same counsel would be legal defenses available inappropriate due to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict actual or potential conflict exists (based on advice of counsel to the Indemnitee) differing interests between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Partiesthem. It is understood agreed that the Indemnifying indemnifying Party or Parties shall not, in respect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements fees and other charges expenses of more than one separate firm (in addition to any local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All Parties and that all such fees, disbursements fees and other charges will expenses shall be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying The indemnifying Party will shall not be liable for any settlement of any action or claim proceeding effected without its written consent, but if settled with such consent (which consent will not be unreasonably withheld)or if there is a final judgment for the plaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No Indemnifying indemnifying Party shall, without the prior written consent of each Indemniteethe indemnified Party, settle or compromise or consent to the entry effect any settlement of any judgment in any pending or threatened claim, action or proceedings (whether or not proceeding in respect of which any Indemnified indemnified Party is or could have been a party thereto)and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (C) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless such settlement, compromise or consent it includes an unconditional release of each Indemnitee from such indemnified Party of all liability arising or on claims that may arise out are the subject of such claimproceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, action or proceeding(2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the indemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in good faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, or (cc) the indemnifying Party refuses or fails to timely assume the defense of such Claim; or (3) in case of Customer, pursuant to Section 20.4.

Defense. The So long as the conditions set forth in Section 8.4(a)(i) for the Indemnifying Party will have to assume the right to participate in ordefense of a Third Party Claim are and remain satisfied and the Indemnifying Party is vigorously defending such Third Party Claim, by giving notice the Indemnifying Party may conduct the defense of the Third Party Claim to the Indemnitee within seven Business Days after receipt of notice of extent permitted by this Agreement. The Indemnified Party may retain separate co-counsel at its sole cost and expense to represent it in connection with the Third Party Claim, jointly with any other and the Indemnifying Party similarly notifiedshall cooperate, and cause the counsel selected by the Indemnifying Party to elect to assume cooperate, with such co-counsel in connection with the response, defense of, any and settlement of the Third Party Claim at such and any related suit or proceeding. If there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate, as advised in writing by outside counsel to the Indemnified Party, for the same counsel to represent both the Indemnified Party and the Indemnifying Party's own expense and by such Indemnifying Party's own , then the Indemnified Party shall be entitled to retain one separate counsel (in each jurisdiction for which the Indemnified Party reasonably determines counsel is required, which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or PartiesParty. It is understood that the The Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemniteethe Indemnified Party (which consent shall not be unreasonably withheld or delayed), settle or admit any Liability with respect to, settle, compromise or consent to discharge the entry of any judgment in any pending or threatened claimThird Party Claim if the admission, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes discharge (i) imposes anything, including the imposition of an injunction or other equitable relief upon the Indemnified Party, other than monetary damages fully indemnified and paid by the Indemnifying Party, (ii) does or would reasonably be expected to interfere with or adversely affect the business, operations or assets of the Indemnified Party or any of its Affiliates, (iii) does not include an unconditional release of each Indemnitee provision whereby the plaintiff or claimant in the matter completely and unconditionally releases the Indemnified Party and its Affiliates from all liability arising Liability with respect to such matter, with prejudice, (iv) involves Taxes or that may arise out (v) would result in the finding or admission of any violation of Law or Governmental Order by the Indemnified Party. With respect to the defense of any Third Party Claim, the party responsible for the defense of the Third Party Claim shall, to the extent reasonably requested by the other party, keep such other party informed as to the status of such claim, action including all settlement negotiations and offers and shall: (A) conduct the defense of the Third Party Claim actively and vigorously and keep the other Party fully informed of material developments in the Third Party Claim at all stages thereof, (B) promptly submit to the other Party copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or proceedingfiled in connection therewith, (C) permit the other Party and its counsel to confer on the conduct of the defense thereof, and (D) permit the other Party and its counsel an opportunity to review and comment on, which comments the Indemnifying Party shall reasonably consider, all legal papers to be submitted prior to their submission.

Defense. The In the event any Third Party makes a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event will promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the “Notice”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party will have the right option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party, which approval will not unreasonably be withheld. The Indemnified Party will have the right, at its own expense, to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (A)(i) the action and after notice from named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to the Indemnitee of its election to assume the defenseactual or potential differing interests between them, and the Indemnifying Party will has not be liable to the Indemnitee for any legal or other expenses except as provided below and except retained separate counsel for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses Indemnified Party and other charges of such counsel will be at the expense of such Indemnitee unless (1ii) the employment of counsel by the Indemnitee such Indemnified Party has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4B) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of time; then, the commencement of Indemnified Party will have the action, in each of which cases the reasonable fees, disbursements and other charges of right to retain its own counsel will be at the sole cost and expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall notParty, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements which costs and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges expenses will be reimbursed paid by the Indemnifying Party promptly as they are incurredon a current basis. An No Indemnifying Party Party, in the defense of any such demand, claim or lawsuit, will not be liable for consent to entry of any judgment or enter into any settlement without the consent of any action or claim effected without its written consent (the Indemnified Party which consent will not be unreasonably withheld). No In the event that the Indemnifying Party shallwill fail to respond within twenty days after receipt of the Notice, without the prior written consent Indemnified Party may retain counsel and conduct the defense of each Indemniteesuch demand, settle claim or compromise or consent lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses will be paid by the Indemnifying Party on a current basis. Failure to provide Notice will not limit the rights of such party to indemnification, except to the entry extent the Indemnifying Party’s defense of any judgment in any pending or threatened claim, the action or proceedings (whether or not any Indemnified Party is a party thereto), unless prejudiced by such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingfailure.

Defense. The If any claim, demand or liability is asserted by any third party against any Indemnified Party, the Indemnifying Party will shall be entitled to participate therein and defend any action or proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity, and the Indemnifying Party shall have the right to participate in or, by giving notice conduct and control the defense subject to the Indemnitee within seven Business Days after receipt Indemnified Party's approval in writing of notice of outside counsel selected by the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after . After notice from the Indemnifying Party to the Indemnitee Indemnified Party of its election to assume the defensedefense of such claim or action, the Indemnifying Party will shall not be liable to the Indemnitee Indemnified Party under this Section 10 for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee Indemnified Party in connection with the defensedefense thereof other than reasonable costs of investigation. The Indemnitee will In any action defended by the Indemnifying Party the Indemnified Party shall have the right to employ be represented by its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the its own expense of such Indemnitee unless (1) the employment of such counsel by the Indemnitee has shall have been authorized in writing by the Indemnifying Party, Party or (2) the Indemnitee has Indemnifying Party shall not have properly employed counsel reasonably concluded satisfactory to such Indemnified Party to have charge of the defense of such action; in each of such cases such fees and expenses shall be paid by the Indemnifying Party. In addition, if the named parties to any such action, suit or proceeding (based on advice of counselincluding any impleaded parties) shall include both such Indemnified Party and Indemnifying Party, and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it or other Indemnitees that which are different from from, or in addition to additional to, those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and if such Indemnified Party notifies the Indemnifying Party (in which case writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party will shall not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, suit or proceeding on behalf of such Indemnified Party, and the Indemnified Party may participate in each the defense of which cases the reasonable feessuch action, disbursements suit or proceeding and other charges of counsel will such fees and expenses shall be at the expense of paid by the Indemnifying Party or Parties. It is understood Party; it being understood, however, that the Indemnifying Party or Parties shall not, in connection with any proceeding one such action or separate but substantially similar or related proceedings actions in the same jurisdictionjurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees, disbursements fees and other charges expenses of more than one separate firm of attorneys (in addition to any local counsel) admitted to practice in such jurisdiction at any one time counsel for all such indemnified party or partiesIndemnified Parties). All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An The Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shallnot, without the prior Indemnified Party's written consent of each Indemniteeconsent, settle or compromise any indemnifiable claim or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), respect thereof unless such settlement, compromise or consent includes an unconditional release of each Indemnitee the Indemnified Party from all liability arising or that may arise out in respect of such claim, action or proceedingIndemnifiable Claim. The parties shall cooperate in the defense of all third party claims which may give rise to Indemnifiable Claims hereunder.

Defense. The Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after Upon receipt of notice of under Subsection (a) from the Third Party ClaimIndemnitee, jointly with any other the Indemnifying Party similarly notifiedshall have the duty to either compromise or defend, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's its own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemnitee), ) such Action. The Indemnifying Party shall promptly (and in any event not more than twenty (20) days after receipt of the Indemnitee's original notice) notify the Indemnitee in writing that it wishes to assume control of the Action pursuant to this Section 12 and of its intention to either compromise or defend such Action. The assumption of the defense of the action and after notice from an Action by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnitee in respect of the Action, nor shall it constitute a waiver by the Indemnifying Party of any defenses it may assert against any Indemnified Party's claim for indemnification. Once the Indemnifying Party gives such notice to the Indemnitee of its election to assume the defenseIndemnitee, the Indemnifying Party will is not be liable to the Indemnitee for the fees of other counsel or any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with such defense, other than the defenseIndemnitee's reasonable costs of investigation and cooperation. The However, the Indemnitee will shall have the right to employ its own separate counsel in any such action, but and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses and other charges of such counsel will be at the expense of such Indemnitee unless counsel) if: (1i) the employment use of the counsel by the Indemnitee has been authorized in writing chosen by the Indemnifying Party, Party would present such counsel with a conflict of interest; (2ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee has reasonably concluded (based on advice of counsel) concludes that there may be legal defenses available to it or other Indemnitees that are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will shall not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action Action on the Indemnitee's behalf); (iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after receiving the Indemnitee's notice of such Action; or (iv) in the commencement reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Losses that could have a materially adverse effect on the ongoing business of the actionIndemnitee; provided, however, that in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of no event shall the Indemnifying Party or Parties. It is understood that be obligated to bear the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements costs and other charges expenses of more than one (1) separate firm (in addition to local counsel) admitted to practice counsel for all of the other Party's Indemnitees in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingAction.

Defense. The Indemnifying Party will have (a) Promptly after the right receipt by any person entitled to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or (ii) the Third Party Claimcommencement of any action or proceeding, jointly such party (the “Aggrieved Party”) will, if claim with respect thereto is made against any other party obligated to provide indemnification pursuant to Section 5.1 and 5.2 of this Agreement (the “Indemnifying Party”), give such Indemnifying Party similarly notified, to elect written notice of such claim or the commencement of such action or proceeding and shall permit the Indemnifying Party to assume the defense ofof any such claim or any proceeding or litigation resulting from such claim, any Third unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party Claim at such or there is a conflict of interest between it and the Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume Party in the conduct of the defense of the action and after notice from such action. Failure by the Indemnifying Party to notify the Indemnitee Aggrieved Party of its election to assume defend any such proceeding or action within a reasonable time, but in no event more than 15 days after written notice thereof shall have been given to the defenseIndemnifying Party, shall be deemed a waiver by the Indemnifying Party will not be liable of its right to defend such action. (b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Indemnitee for Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any legal losses, damages and liabilities caused by or other expenses except as arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided below that the Indemnifying Party shall direct and except for control the reasonable costs defense of investigation subsequently incurred by the Indemnitee such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnitee will have Indemnifying Party shall not, in the right defense of such claim or any litigation resulting therefrom, consent to employ its own counsel in entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party. (c) If the Indemnifying Party shall not assume the defense of any such actionclaim or litigation resulting therefrom, but the feesAggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, expenses and other charges legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such counsel will claim or litigation. No settlement of claim or litigation shall be at made without the expense consent of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will shall not be unreasonably withheld). No If no settlement of the claim or litigation is made, the Indemnifying Party shall, without shall promptly reimburse the prior written consent of each Indemnitee, settle or compromise or consent to Aggrieved Party for the entry amount of any judgment rendered with respect to such claim or in any pending such litigation and of all expenses, legal or threatened claimotherwise, action as incurred by the Aggrieved Party in the defense against such claim or proceedings litigation. (whether or not any Indemnified Party is a d) The rights to indemnification hereunder shall apply to claims made by either party thereto), against the other whereby written notice of the claim has been made and delivered within the one-year period following the Closing Date unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingotherwise provided herein.

Defense. The Indemnifying Party will Except as set forth in Section 11.5(d) hereof, if any action, suit or proceeding is commenced, or any claim or demand is asserted, by a third party not Affiliated with any party hereto against a party hereto (the "Indemnitee") in respect of which the Indemnitee proposes to demand indemnification under Section 11.1 or 11.2 above, the party from which indemnification is sought (the "Indemnitor") shall have the right to participate in or, by giving notice assume the entire control thereof (including the selection of counsel reasonably acceptable to the Indemnitee within seven Business Days after receipt of notice Indemnitee), subject to the right of the Third Party ClaimIndemnitee to participate (with counsel of its choice reasonably acceptable to the Indemnitor but at the Indemnitee's expense) in the defense, compromise or settlement thereof; provided, however, if the claim or demand is one for which both parties hereto are responsible, then both parties shall jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own thereof with counsel (which counsel shall be reasonably acceptable to Indemnitee)each party, and assume neither party may compromise or settle such claim or demand without the defense other party's consent, which consent will not be unreasonably denied or withheld. The Indemnitee shall notify the Indemnitor at the earliest practical time after the Indemnitee becomes aware of the action and after notice from the Indemnifying Party circumstance, event or activity which gives rise to the Indemnitee asserted obligation of indemnity, it being understood that failure to provide such notice shall not affect the Indemnitee's right to indemnification hereunder, except to the extent the Indemnitor shall have been prejudiced as a result of such failure (and the Indemnitor shall not be liable for any attorney fees or expenses incurred during the period in which the Indemnitor shall have failed to give such notice). With respect to any actions, suits, proceedings, claims or demands as to which the Indemnitor shall not have exercised its election right to assume the defense, the Indemnifying Party will Indemnitee shall assume and control the defense of and contest such action with counsel chosen by it and approved by the Indemnitor, which approval shall not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such actionunreasonably withheld, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right Indemnitor shall be entitled to direct participate in the defense of such action on behalf (the cost of such participation to be at its own expense) and the Indemnitor shall be obligated to pay the reasonable attorneys' fees and expenses of the Indemnitee) Indemnitee to the extent that such fees and expenses relate to claims as to which indemnification is due under this Article XI and subject to the limitations contained in this Agreement. Both the Indemnitor and the Indemnitee shall cooperate fully in all respects with one another in any such defense, compromise or (4) settlement, including, without limitation, by making available to the Indemnifying Party has other all pertinent information and personnel under its direct or indirect control, and the parties agree that such cooperation will be carried out in a way so as not in fact employed counsel to assume waive any applicable or available attorney-client privilege, and the defense of parties will take all measures to protect such action within a reasonable time after receiving notice of the commencement of the privilege. Neither party shall compromise or settle any such action, in each of which cases the reasonable feessuit, disbursements and other charges of counsel will be at the expense of the Indemnifying Party proceeding, claim or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected demand without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemniteethe other party, settle which consent shall not be unreasonably withheld or delayed, provided, however, that a party may so compromise or consent settle, after consultation with the other party, (i) if such compromise or settlement involves solely the payment of money damages and/or the granting of releases, provided that no such compromise, settlement or release shall acknowledge liability for future acts or obligate any ▇▇▇▇▇▇▇▇ Indemnitee with respect to any post-Closing activities of the Business or, except for the Assumed Liabilities, obligate any Purchaser Indemnitee with respect to any pre-Closing activities of the Business, (ii) if all claimants provide a release (reasonably acceptable to such Indemnitees) in favor of Indemnitees, and (iii) if all claimants agree in writing to maintain the facts and circumstances of the settlement confidential to the entry extent permitted by applicable law). This Section 11.3 shall not apply to direct claims of any judgment in ▇▇▇▇▇▇▇▇ Indemnitee against Purchaser or Silgan or of any pending or threatened claimPurchaser Indemnitee against ▇▇▇▇▇▇▇▇, action or proceedings (whether or that are not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingbased upon claims asserted by third parties.

Defense. The Indemnifying Party With respect to any Proceedin▇, ▇▇▇▇ath RentCorp will have the right be entitled to participate in orthe Proceeding at ▇▇▇ ▇▇n expense. Except as otherwise provided below, by giving notice to the Indemnitee within seven Business Days after receipt extent McGrath RentCorp so desires, it may, upon delivery of written notice ▇▇ ▇▇▇▇xx, assume the defense of the Third Party Claimany Proceeding with counsel reasonably satisfactory to Xxxxxx. However, jointly with any other Indemnifying Party similarly notified, to elect McGrath RentCorp shall not be entitled to assume the defense ofof any P▇▇▇▇▇▇▇ng (i) brought by or on behalf of McGrath RentCorp, any Third Party Claim at such Indemnifying Party's own expense or (ii) as to which Xxxxxx has reasonably determine▇ ▇▇▇▇▇ may be a conflict of interest between Xxxxxx and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume McGrath RentCorp in the defense of the action Proceeding and after Xxxxxx does in ▇▇▇▇ ▇▇sume and conduct the defense. 5.2.1 If McGrath RentCorp assumes the defense, Xxxxxx shall furnish such infor▇▇▇▇▇▇ as he may possess regarding Xxxxxx or the Proceeding in question that McGrath RentCorp may reasonably request and as may be required in con▇▇▇▇▇▇▇ with the defense or settlement of such Proceeding and shall fully cooperate with McGrath RentCorp in every other respect. Except as provided in Sectio▇ ▇.▇ ▇elow, if McGrath RentCorp assumes the defense of the Proceeding, McGrath RentC▇▇▇ ▇▇▇ll take all necessary steps in good faith to defe▇▇, ▇▇▇tle or otherwise dispose of the Proceeding. 5.2.2 After written notice from the Indemnifying Party McGrath RentCorp to the Indemnitee Xxxxxx of its election to assume the defensedefense of a▇▇ ▇▇▇▇eeding, the Indemnifying Party McGrath RentCorp will not be liable to the Indemnitee Xxxxxx under this Agreement or ▇▇▇▇▇▇ise for any legal or Expenses subsequently incurred by Xxxxxx in connection with the defense of such Proceeding other expenses except as provided below and except for the than reasonable costs of investigation subsequently incurred by the Indemnitee or as otherwise provided in connection with the defenseclauses (i) through (iv) below. The Indemnitee will Xxxxxx shall have the right to employ its Xxxxxx's own counsel in any such actionProceeding, but all Expenses related thereto incurred after written notice from McGrath RentCorp of its assumption of the fees, expenses and other charges of such counsel will defense shall be at the expense of such Indemnitee unless Xxxxxx'▇ ▇▇▇▇▇se, unless: (1i) the employment of counsel by the Indemnitee Xxxxxx has been authorized in writing by the Indemnifying Party, McGrath RentCorp; (2ii) the Indemnitee Xxxxxx has reasonably concluded (based on advice of counsel) that determined there may be legal defenses available to it or other Indemnitees that are different from or ▇ ▇▇▇▇▇ict of interest between Xxxxxx and McGrath RentCorp in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf the Proceeding; (iii) after a Chan▇▇ ▇▇ ▇ontrol, the employment of the Indemnitee) counsel by Xxxxxx has been approved by Independent Counsel; or (4iv) McGrath RentCorp shall not, in fact, assume and conduct the Indemnifying Party has not in fact employed counsel defense o▇ ▇▇▇▇ Proceeding within a reasonable time after giving written notice of its election to assume the defense of such action within a reasonable time after receiving notice Proceeding. 5.2.3 Any Expenses incurred by McGrath RentCorp in defense of the commencement of the action, Proceeding under this Section 5.2 (▇▇▇▇▇▇ in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, a situation described in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm clause (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party theretoi), unless such settlement, compromise (ii) or consent includes an unconditional release (iv) of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingSection 5.2.2) shall be considered Expenses advanced by McGrath RentCorp to Xxxxxx under Section 3 above.

Defense. The Indemnifying Party will have If the right facts pertaining to participate in ora Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnitee Indemnified Party within seven Business Days after 15 days following its receipt of the notice of the Third Party Claimsuch claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense ofor the prosecution of such claim, any Third Party Claim including the employment of counsel or accountants at such Indemnifying Party's own expense its cost and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defenseexpense. The Indemnitee will Indemnified Party shall have the right to employ its own counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in such action, but the fees, fees and expenses and other charges of such counsel will shall be at the expense of such Indemnitee Indemnified Party's own expense, unless (1a) the employment Indemnity Obligor failed to assume the defense or prosecution thereof within such 15-day period; or (b) the Indemnified Party determines there is a conflict of interest in the representation by counsel selected by the Indemnitee has been authorized in writing by the Indemnifying PartyIndemnity Obligor, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements fees and other charges expenses of counsel will selected by the Indemnified Party shall be at the expense of the Indemnifying Party or PartiesIndemnity Obligor. It is understood If the Indemnity Obligor assumes the defense of a proceeding, (i) it will be conclusively established for purposes of the Agreement that the Indemnifying claims made in that proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnity Obligor without the Indemnified Party's consent unless (A) there is no finding or admission of any violation of applicable laws or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnity Obligor; and (iii) the Indemnified Party will have no liability with respect to any compromise or Parties settlement of such claims effected without its consent. Notwithstanding the foregoing, the filing of any answer by the Indemnity Obligor in order to preserve the rights of the Indemnified Party due to a filing deadline shall notnot in itself constitute its election to assume the defense of a claim hereunder. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties to this Agreement shall cooperate in the defense or prosecution of such claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or partiestherewith. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will The Indemnity Obligor shall not be liable for any settlement of any action or such claim effected without its prior written consent (consent, which consent will shall not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Subject to the limitations set forth in this Section 10.5(b), in the event of a Third Party Claim, the Indemnifying Party will shall have the right to participate in or, (exercisable by giving written notice to the Indemnitee Indemnified Party within seven Business Days ten (10) days after receipt of notice the Indemnified Party has given a Claim Notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, ) to elect to assume conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof, and (ii) if requested by the Indemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to conduct and control the defense ofof the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with an actual or potential conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, then in each such case the Indemnified Party shall have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party shall, and shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition, the party controlling the defense of any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume keep the defense non-controlling party advised of the action status thereof and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for shall consider in good faith any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred recommendations made by the Indemnitee in connection non-controlling party with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party respect thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. (i) In the case of a third party claim, the Indemnifying Party may participate in the defense thereof and, if it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such conflict, the Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party will have shall be liable for the right reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to participate the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in orgood faith to settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnitee within seven Business Days after receipt of notice Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the Third Party Claimlimitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any other joint defense agreement which may be entered into by the parties. (ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party similarly notifiedParty, to elect to assume the defense ofexclusive right to defend, any Third Party Claim compromise or settle such claim, at such the expense of the Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, but the Indemnifying Party will not be liable bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indemnifying Party periodically, or upon the Indemnifying Party's reasonable request, of the status of the litigation. The Indemnified Party's choice of counsel shall be subject to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs consent of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may such consent not to be legal defenses available to it unreasonably withheld or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the delayed. The Indemnifying Party (may participate in which case the Indemnifying Party will not have the right defense thereof, at its own expense. If, in order to direct preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy's insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such action on behalf defense so that Dynegy's insurance rights are not lost, subject to the condition that the insurer accepts the tender of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense claim without reservation of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Partiesrights. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent Notwithstanding anything to the entry of any judgment contrary in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party theretothis Section 9.3(b), unless such settlement, compromise or consent includes an unconditional release any Indemnifiable Claim relating to Hazardous Substances that is covered by Section 5.18 shall remain subject in all respect to the terms of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingSection 5.18.

Defense. The In the case of a third party claim, the Indemnifying Party will have may participate in the defense thereof and, if it so chooses and acknowledges its obligation to indemnify the Indemnified Party therefore, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party. In all cases, the party without the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume control the defense of the action and after notice from Indemnifiable Claim may participate in the Indemnifying Party to defense at its own expense. In the Indemnitee case of its election to assume the defensea third party claim, the Indemnifying Party will not shall inform the Indemnified Party within 14 days of receiving the written notice seeking indemnification whether the party elects to control the defense and acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs fees and expenses of investigation subsequently incurred counsel employed by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in Indemnified Party for any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in period during which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume assumed the defense thereof, provided that it either acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or Partiesthe amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall endeavor in good faith to settle such dispute. It is understood that the The Indemnifying Party shall not settle or Parties shall not, in connection with any compromise a third party claim or legal proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemniteethe Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that is an Excluded Liability, except that any Indemnifiable Claim relating to Hazardous Substances remain subject in all respect to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or consent delayed. If the Indemnifying Party does not assume the defense of any third party claim or litigation resulting therefrom within 14 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the entry Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or the Purchaser Indemnitors, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or the Purchaser Indemnitors, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any judgment such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out the defense and settlement of such claimIndemnifiable Claim and the exchange of information relevant thereto, action or proceeding(D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense pursuant to the Joint Defense and Common Interest Agreement dated as of October 8, 2003, as amended, between Dynegy and Exelon.

Defense. The Indemnifying Party will shall have the right to direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party or, regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to the Third Party Claim. If the Indemnifying Party elects to assume the defense of any such claim or proceeding, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a result of a settlement, the Indemnified Party shall have the right to direct, at the Indemnifying Party's sole cost and expense, through counsel of its own choosing, the defense or settlement of any such action or proceeding; provided, however, that if the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in or, by giving notice and consent (which consent shall not be unreasonably withheld) to the Indemnitee within seven Business Days after receipt settlement or assume or reassume the defense of notice such claim or proceeding. Notwithstanding the foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 10.3(b), and the indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses incurred by the Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party Claims. In connection with the defense of any Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel each party shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those make available to the Indemnifying Partyparty controlling such defense any books, (3) a conflict records or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action other documents within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood its control that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings are reasonably requested in the same jurisdiction, be liable course of or necessary or appropriate for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingdefense.

Defense. The In the case of a third party claim, the Indemnifying Party will have the right to participate in ormay, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claimat its option, jointly with any other Indemnifying Party similarly notified, to elect to assume control the defense of, any Third Party of an Indemnifiable Claim at such Indemnifying Party's ’s expense with counsel reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to retain counsel of its choice at its own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume participate in the defense of the action and after notice from Indemnifiable Claim; provided, however, that the Indemnifying Party to shall pay the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below fees and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges disbursements of such separate counsel will be at the expense of such Indemnitee unless if (1) the employment of such separate counsel by the Indemnitee has been specifically authorized in writing by the Indemnifying Party, ; or (2) the Indemnitee named parties to the proceeding in which such claim, demand, action or cause of action has reasonably concluded (based on advice been asserted include both the Indemnifying Party and such Indemnified Party and, in the reasonable judgment of counsel) counsel to such Indemnified Party, there exists one or more good faith defenses that there may be legal defenses available to it or other Indemnitees the Indemnified Party that are different from or in addition to conflict with those available to the Indemnifying Party, (3) a conflict Party or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and that the Indemnifying Party (in which case and Indemnified Party have actual material conflicting interests with respect to such claim, demand, action or course of action. Notwithstanding the foregoing, the Indemnifying Party shall not be liable for the fees and disbursements of more than one counsel for all Indemnified Parties in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. If the Indemnifying Party does not assume such defense or the Indemnifying Party notifies the Indemnified Party within thirty days that it will not have assume such defense, the right to direct Indemnified Party may control the defense of such action claim and may settle the claim on behalf of and for the Indemnitee) or (4) account and risk of the Indemnifying Party has not in fact employed counsel Party, who shall be bound by the result. In all cases, the party without the right to assume control the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings Indemnifiable Claim may participate in the same jurisdictiondefense at its own expense, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent subject to the entry second sentence of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingthis paragraph.

Defense. The (i) If a Third Party Claim is made against an Indemnified Party, then the Indemnifying Party will shall be entitled to participate in the defense of the Third Party Claim (with counsel of its own choosing) and, if both the amount that the plaintiff or claimant is seeking under such Third Party Claim is less than the then outstanding indemnification obligation of the Indemnifying Party pursuant to the terms of this Agreement (without taking into account court costs and reasonable fees and expenses of attorneys and expert witnesses) and the Indemnifying Party so chooses within 30 days of delivery of notice thereof, to assume the defense of such Third Party Claim. (ii) If the Indemnifying Party elects to assume the defense of a Third Party Claim as set forth in Section 8.4(b)(i), then (A) the Indemnifying Party shall defend such Third Party Claim actively and in good faith, (B) the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, (C) the Indemnified Party shall have the right to participate in orthe defense of such Third Party Claim and to employ counsel, at its own expense, separate from the counsel employed by giving notice to the Indemnitee within seven Business Days after receipt Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense, and (D) the Parties shall cooperate in the defense of notice of the such Third Party Claim, jointly with any other such cooperation including the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party similarly notifiedof records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material, provided; however, that neither the Indemnified Party nor the Indemnifying Party shall be required to elect disclose any privileged information or any attorney work-product in connection with the defense of any such asserted Third Party Claim unless such disclosure is made pursuant to a joint defense agreement reasonably acceptable to both parties. (iii) If the Indemnifying Party has the right to assume the defense ofof a Third Party Claim under Section 8.4(b)(i) and, within the time period set forth in Section 8.4(b)(i), does not assume defense of such Third Party Claim or if the Indemnifying Party does not have the right to assume the defense of a Third Party Claim under Section 8.4(b)(i), then (A) the Indemnified Party shall defend such Third Party Claim actively and in good faith, (B) the Indemnifying Party shall have the right to participate in the defense of such Third Party Claim and to employ counsel, at its own expense, separate from the counsel employed by the Indemnified Party, it being understood, however, that the Indemnified Party shall control such defense and (C) the Parties shall cooperate in the defense of such Third Party Claim, with such cooperation including the retention and (upon the Indemnified Party’s request) the provision to the Indemnified Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material, provided, however, that neither the Indemnified Party nor the Indemnifying Party shall be required to disclose any privileged information or any attorney work-product in connection with the defense of any such asserted Third Party Claim unless such disclosure is made pursuant to a joint defense agreement reasonably acceptable to both parties. (iv) Notwithstanding anything to the contrary in this Section 8.4(b), neither the Indemnifying Party nor the Indemnified Party shall settle, or consent to the entry of judgment with respect to, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemniteethe other (which consent shall not be unreasonably withheld, settle conditioned or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party theretodelayed), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in the negotiation, settlement and defense thereof with counsel of its choice and, if the Indemnifying Party so chooses, to assume the negotiation, settlement and defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim, then the Indemnifying Party shall not be liable to the Indemnified Party for the fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third Party Claim shall not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in orthe defense thereof and to employ counsel, at its own expense, separate from the counsel employed by giving notice the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnitee Indemnifying Party of records that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party has not within seven thirty (30) Business Days after receipt of notice of the an Indemnification Notice relating to a Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect chosen to assume the defense of, any of a Third Party Claim at or fails to defend such Indemnifying Party's own expense Third Party Claim actively and by such Indemnifying Party's own counsel in good faith, then the Indemnified Party shall (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will upon further written notice) have the right to employ its own counsel in defend such Third Party Claim. The Indemnified Party shall not take any such action, but action the fees, expenses and other charges purpose of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available which is to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct prejudice the defense of such action on behalf of the Indemnitee) any claim subject to indemnification hereunder or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within induce a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition third party to local counsel) admitted assert a claim subject to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingindemnification hereunder.

Defense. The Indemnifying Party will have (a) If the right facts pertaining to participate in ora Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnitee Indemnified Party within seven Business Days after twenty (20) days following its receipt of the notice of the Third Party Claimsuch claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense ofor the prosecution of such claim, any Third Party Claim including the employment of counsel or accountants at such Indemnifying Party's own expense its cost and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defenseexpense. The Indemnitee will Indemnified Party shall have the right to employ its own counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in such action, but the fees, fees and expenses and other charges of such counsel will shall be at the expense Indemnity Obligor’s own expense. (b) Whether or not the Indemnity Obligor chooses to defend or prosecute an indemnification claim under Section 9.4(a), all the parties to this Agreement shall cooperate in the defense or prosecution of such Indemnitee unless claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Each party shall act in good faith and in a commercially reasonable manner in addressing any liabilities that may provide the basis for an indemnifiable claim. (1c) No Indemnity Obligor may settle any claim affecting an Indemnified Party without such Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed. No Indemnified Party may settle any claim affecting an Indemnity Obligor without such Indemnity Obligor’s prior written consent, not to be unreasonably withheld, conditioned or delayed. (d) In the employment event of counsel payment by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available Indemnity Obligor to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Indemnified Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings Loss arising out of a third party claim, the Indemnity Obligor shall not be subrogated to and shall not stand in the same jurisdiction, be liable for place of the reasonable fees, disbursements and other charges Indemnified Party as to any events or circumstances in respect of more than one separate firm (in addition which the Indemnified Party may have any right or claim against such third party relating to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingmatter.

Defense. The In the event any person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, then the party receiving notice of such event shall promptly notify the other party or parties of the demand, claim or lawsuit. Within ten (10) days after notice by the Indemnified Party (the "Notice") to an Indemnifying Party will have of such demand, claim or lawsuit, except as provided in the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defensenext sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party, to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be liable withheld. The Indemnified Party shall have the right, at its own expense, to participate in the Indemnitee for defense of any legal suit, action or other expenses except as provided below proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (a) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and except for the reasonable costs Indemnified Party and representation of investigation subsequently incurred both parties by the Indemnitee in connection with the defense. The Indemnitee will have the right same counsel would be inappropriate due to employ its own counsel in any such actionactual or potential differing interests between them, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless or (1b) the employment of counsel by the Indemnitee such Indemnified Party has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4c) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of time; then, the commencement of Indemnified Party shall have the action, in each of which cases the reasonable fees, disbursements and other charges of right to retain its own counsel will be at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or Partieslawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. It is understood If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or additional to those available to and which have not been asserted by the Indemnifying Party, the Indemnifying Party will not have at the election of the Indemnified Party, the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten (10) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or Parties lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed paid by the Indemnifying Party promptly on a current basis. Except as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment explicitly provided in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party theretothis Section 9.3(b), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out failure to provide Notice shall not limit the rights of such claim, action or proceedingparty to indemnification.

Defense. The Indemnifying Party will have If any Proceeding referred to in Section 10.10.1 is brought against an indemnified party and it gives notice to the right indemnifying party of the commencement of such Proceeding, the indemnifying party will, unless the claim is a Tax Claim, be entitled to participate in orsuch Proceeding and, by giving notice to the Indemnitee within seven Business Days after receipt extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of notice of the Third Party Claimits financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), jointly with any other Indemnifying Party similarly notified, to elect to assume the defense ofof such Proceeding with counsel satisfactory to the indemnified party and, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party indemnifying party to the Indemnitee indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, the Indemnifying Party will not be liable to the Indemnitee indemnified party under this Section 10 for any legal fees of other counsel or any other expenses except as provided below and except for with respect to the reasonable costs defense of investigation such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges defense of such counsel will be at Proceeding, other than reasonable costs of investigation. If the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such action on behalf claims may be effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the Indemnitee) or rights of any Person and no effect on any other claims that may be made against the indemnified party, and (4B) the Indemnifying Party has not sole relief provided is monetary damages that are paid in fact employed counsel full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume the defense of such action within a reasonable time after receiving notice of Proceeding, the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel indemnifying party will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with bound by any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice determination made in such jurisdiction at Proceeding or any one time for all such indemnified party compromise or parties. All such fees, disbursements and other charges will be reimbursed settlement effected by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingindemnified party.

Defense. The Indemnified Party intending to claim indemnification under this ARTICLE VIII shall promptly notify the Indemnifying Party will of any Action or Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall be entitled to assume and control the defense thereof (with counsel selected by the Indemnifying Party) whether or not such Action is rightfully brought; provided, however, that an Indemnified Party shall have the right to participate in orretain its own counsel, with the fees and expenses to be paid by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party ClaimIndemnified Party, jointly with any other unless Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to does not assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for in which case the reasonable costs fees and expenses of investigation subsequently incurred counsel retained by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will Indemnified Party shall be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing paid by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying . The Indemnified Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and its employees and agents, shall cooperate fully with the Indemnifying Party (and its legal representatives in which case the investigation and defense of any Action or Loss. The Indemnifying Party will shall not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement indemnification of any action Action or claim effected without its written consent Loss settled (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or resolved by consent to the entry of judgment) without the written consent of the Indemnifying Party. Also, if the Indemnifying Party shall control the defense of any judgment in any pending such Action, the Indemnifying Party shall have the right to settle such Action; provided, that the Indemnifying Party shall obtain the prior written consent (which shall not be unreasonably withheld or threatened claim, action or proceedings (whether or not any delayed) of the Indemnified Party before entering into any settlement of (or resolving by consent to the entry of judgment upon) such Action unless (A) there is a party thereto)no finding or admission of any violation of law or any violation of the rights of any Person by an Indemnified Party, unless such settlementno requirement that the Indemnified Party admit fault or culpability, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or and no adverse effect on any other claims that may arise out of be made by or against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party or its insurer and such claim, action settlement does not require the Indemnified Party to take (or proceedingrefrain from taking) any action.

Defense. The In the case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or other legal action or otherwise, a “Third-Party Claim”), the Indemnifying Party will have the right to participate in ormay, by giving upon written notice to the Indemnitee within seven Business Days after receipt of notice Indemnified Party, take control of the Third defense and investigation of such Third-Party Claim, jointly with any other Claim if the Indemnifying Party similarly notified, acknowledges to elect to assume the defense of, any Third Indemnified Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume in writing the defense obligation of the action and after notice from the Indemnifying Party to indemnify the Indemnitee Indemnified Party with respect to all elements of its election to assume such Third-Party Claim. If the defenseIndemnifying Party assumes the defense of any such Third-Party Claim, the Indemnifying Party will not be liable shall select counsel reasonably acceptable to the Indemnitee for Indemnified Party (and separate from counsel to the Indemnifying Party if there is any legal conflict or other expenses except as provided below divergence of interest between the Indemnifying Party and except for the reasonable costs of investigation subsequently incurred by Indemnified Party) to conduct the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges defense of such counsel will be claims or legal proceedings and, at the sole cost and expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) shall take all steps necessary in the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it defense or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the settlement thereof. The Indemnifying Party (in which case the Indemnifying Party will shall not have the right consent to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of or the entry of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying judgment arising from any such Third-Party shall, Claim without the prior written consent of each Indemniteethe Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such Third-Party Claim, with its own counsel and at its own expense; provided, however, that the Indemnified Party shall be entitled to settle any Third-Party Claim involving criminal penalties, civil fines or compromise or harm without the consent, but at the expense, of the Indemnifying Party if the Indemnifying Party shall unreasonably fail to do so after being requested to do so by the Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party that it will assume the defense of such Third-Party Claim within thirty (30) days after the Indemnifying Party receives notice of such claim from the Indemnified Party: (a) the Indemnified Party may defend against such Third-Party Claim in such manner as it may deem reasonably appropriate, provided that the Indemnified Party shall not consent to a settlement of or the entry of any judgment arising from such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed); and (b) the Indemnifying Party shall be entitled to participate in any pending or threatened claim, action or proceedings (whether or but not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out control) the defense of such claimaction, action with its counsel and at its own expense. Regardless of which Party shall assume the defense of the Third-Party Claim, the Parties agree to cooperate fully with one another in connection therewith. Such cooperation shall include the providing of records and information which are relevant to such Third-Party Claim and making employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or proceedingrespond to legal process, in each case to the extent that the Party being requested to provide records and information or to make employees and officers available can do so without waiving any evidentiary privileges to which it is entitled.

Defense. The Indemnifying Party will In case any claim, demand or deficiency (a "CLAIM") is asserted or any action is commenced or notice is given of any administrative or other proceeding against the person(s) and/or entities seeking indemnity under this SECTION 11 (hereinafter referred to as the "INDEMNITEE") in respect of which such indemnity is sought hereunder (each and all of such persons and entities being hereinafter referred to as the "INDEMNITOR") pursuant to this SECTION 11, Indemnitee shall give prompt notice thereof in writing to Indemnitor. Within thirty (30) days after receipt of such notice (or prior to such earlier date as any answer in any administrative or other proceeding is due), Indemnitor may give Indemnitee written notice of its election to conduct the defense of such Claim at its own expense. If Indemnitor has given Indemnitee such notice of election to conduct the defense, Indemnitee shall nevertheless have the right to participate in orthe defense thereof, by giving notice but such participation shall be solely at its expense. If Indemnitor shall not notify Indemnitee in writing (within the time hereinabove provided) of its election to conduct the defense of such Claim, Indemnitee may (but need not) conduct (at the expense of Indemnitor) the defense of any Claim. The party assuming the defense of a Claim hereunder (the "DEFENDING PARTY") shall notify the other party of its intention to settle, compromise or satisfy any such Claim and may make such settlement, compromise or satisfaction unless such other party (the "ASSUMING PARTY") shall notify the Defending Party in writing (within seven Business Days thirty (30) days after receipt of such notice of the Third Party Claimintention to settle, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee compromise or satisfy) of its election to assume (at its sole expense) the defense of any such Claim and promptly thereafter take appropriate action to implement such defense. The Assuming Party shall indemnify the Defending Party and hold it harmless against any losses in excess of the amount of losses the Defending Party would have incurred if the proposed settlement had been agreed upon. Indemnitee shall cooperate with Indemnitor in such defense, the Indemnifying Party will not be liable to the at Indemnitor's cost, and Indemnitee for any legal or other expenses except as provided below and except for the shall provide reasonable costs assistance of investigation subsequently incurred by the Indemnitee Indemnitee's employees in connection with the such defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Except as otherwise provided herein, the ------- Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to may elect to assume the defense ofcompromise or defend, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemniteethe Indemnified Party), and assume the defense of the action and after notice from any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Indemnitee Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to assume do so as herein provided, or otherwise abandons the defensedefense of such Third Party Claim, the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim including the costs and expenses of the Indemnified Party incurred in connection therewith. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party will not be liable to and the Indemnitee for any legal or other expenses except as provided below and except for Indemnified Party in the reasonable costs conduct of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges defense of such counsel will be at the expense of such Indemnitee unless Third Party Claim, or (1y) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal are specific defenses available to it or other Indemnitees that the Indemnified Party which are different from or in addition additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to then the Indemnitee) between the Indemnitee and the Indemnifying Indemnified Party (in which case the Indemnifying Party will not shall have the right to direct be represented by counsel selected by it. In such an event, the reasonable fees and disbursements of a single counsel to the Indemnified Party shall be included in the loss suffered by the Indemnified Party in respect of such Third Party Claim. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such action on behalf of the Indemnitee) or (4) Third Party Claim without the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its Party's prior written consent (which consent will shall not be unreasonably withheld). No If the Indemnifying Party shallshall have assumed the defense of a Third Party Claim, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such shall agree to any settlement, compromise or consent includes an unconditional release discharge of each Indemnitee from all a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability arising or that may arise out of in connection with such Third Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party. If the Indemnifying Party chooses to defend any claim, action the Indemnified Party shall make available to the Indemnifying Party any personnel or proceedingany books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party reasonably determines, based on the opinion of its outside counsel, cannot be separated form any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.

Defense. The Indemnifying (a) Each Party will shall promptly notify the other Party of any actual or potential claim alleging that the Research, Development, Manufacture, or Commercialization of any Licensed Product infringes, misappropriates, or otherwise violates any Patent Rights, Know-How, or other intellectual property rights of any Third Party (“Third Party Infringement”). In any such instance, the Parties shall as soon as practicable thereafter discuss in good faith the best response to such notice of Third Party Infringement, and, subject to Section 3.6, Gilead shall have the first right (but not the obligation) to defend any such claim of Third Party Infringement, at Gilead’s sole discretion, cost, and expense, and Hookipa shall have the right to participate be represented in any such action by counsel of its own choice at Hookipa’s sole cost and expense. CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[***]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. (b) If Gilead declines or fails to assert its intention to defend any such claim of Third Party Infringement within [***] days following receipt or, by giving as applicable, sending of a notice pursuant to Section 11.4(a), then Hookipa shall have the Indemnitee within seven Business Days after receipt right (but not the obligation) to defend such claim of notice of the Third Party ClaimInfringement at Hookipa’s sole discretion, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense cost and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee)expense, and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will Gilead shall have the right to employ its own counsel be represented in any such actionaction by counsel of its own choice at Gilead’s sole cost and expense. (c) In no event shall either Party settle or otherwise compromise any Third Party Infringement by admitting that any Patent Right included within the Licensed Technology is invalid or unenforceable, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel explicitly approved by the Indemnitee has been authorized other Party in writing by writing. In the Indemnifying Partyevent that Gilead, (2) subject to Hookipa’s prior approval, enters into any settlement with respect to any actual or potential claim of Third Party Infringement which includes the Indemnitee has reasonably concluded (based on advice acceptance of counsel) that there may be legal defenses available any license to it Patent Rights, Know-How, or other Indemnitees that are different from intellectual property rights owned or in addition to those available to the Indemnifying Party, (3) a conflict otherwise Controlled by any Third Party and necessary or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable useful for the reasonable feesResearch, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party Development, Manufacture, or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement Commercialization of any action or claim effected without its written consent (which consent will not Licensed Product, such settlement shall further be unreasonably withheldsubject to Section 9.5(c). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceeding.

Defense. The Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after Upon receipt of notice of under Section 8.3.1 from the Third Party ClaimIndemnitee, jointly with any other the Indemnifying Party similarly notifiedshall have the duty to either compromise or defend, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's its own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemnitee), such Action. The Indemnifying Party shall promptly and in any event not more than twenty (20) days after receipt of the Indemnitee's original notice) notify the Indemnitee in writing that it wishes to assume control of the Action pursuant to this Article 8 and of its intention to either compromise or defend such Action. The assumption of the defense of the action and after notice from an Action by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnitee in respect of the Action, nor shall it constitute a waiver by the Indemnifying Party of any defenses it may assert against any Indemnified Party's claim for indemnification. Once the Indemnifying Party gives such notice to the Indemnitee of its election to assume the defenseIndemnitee, the Indemnifying Party will is not be liable to the Indemnitee for the fees of other counsel or any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with such defense, other than the defenseIndemnitee's reasonable costs of investigation and cooperation. The However, the Indemnitee will shall have the right to employ its own separate counsel in any such action, but and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses and other charges of such counsel will be at the expense of such Indemnitee unless counsel) if: (1a) the employment use of the counsel by the Indemnitee has been authorized in writing chosen by the Indemnifying Party, Party would present such counsel with a conflict of interest; (2b) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee has reasonably concluded (based on advice of counsel) concludes that there may be legal defenses available to it or other Indemnitees that are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will shall not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action Action on the Indemnitee's behalf); (c) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after receiving the Indemnitee's notice of such Action; or (d) in the commencement reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Losses that could have a materially adverse effect on the ongoing business of the actionIndemnitee; provided, however, that in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of no event shall the Indemnifying Party or Parties. It is understood that be obligated to bear the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements costs and other charges expenses of more than one (1) separate firm (in addition to local counsel) admitted to practice counsel for all of the other Party's Indemnitees in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingAction.

Defense. The Indemnifying Party will may undertake and control the defense of the Third Party Claim, by representatives reasonably acceptable to the Indemnified Party, if (i) the Indemnified Party, in the case it is any of the Buyer Indemnified Parties, determines that the Losses alleged to be subject to indemnification under this Article 8 would not be recoverable, in whole or predominately, under the RWI Policy and (ii) the Indemnifying Party admits in written notice to the Indemnified Party that it has an indemnification obligation hereunder with respect to such Third Party Claim, in which case such admission shall constitute the Indemnifying Party’s undertaking to pay directly all Losses incurred in connection with the Third Party Claim (giving effect to the limitations set forth in this Article 8). If the Indemnifying Party undertakes the defense of the Third Party Claim, then the Indemnified Party shall have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice defense of the Third Party ClaimClaim at its own expense, jointly with any other provided that, in such event, the Indemnifying Party similarly notified, to elect to assume shall pay the defense of, any Third Party Claim at fees and expenses of such Indemnifying Party's own expense and by such Indemnifying Party's own separate counsel (which counsel shall be reasonably acceptable A) incurred by the Indemnified Party prior to Indemnitee), and assume the date the Indemnifying Party assumes control of the defense of the action and after notice from Third Party Claim or (B) if representation of both the Indemnifying Party to and the Indemnitee Indemnified Party by the same counsel would create a conflict of its election to assume the defense, interest. So long as the Indemnifying Party will is defending the Third Party Claim actively and in good faith, the Indemnified Party shall not be liable compromise or settle, or consent to the Indemnitee for any legal or other expenses except as provided below and except for entry of a judgment with respect to, the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Third Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, Claim without the prior written consent of each Indemniteethe Indemnifying Party (which consent shall not be unreasonably withheld, settle conditioned, or compromise delayed). Each Party shall cooperate, and cause its Subsidiaries to cooperate, in the defense or consent to the entry prosecution of any judgment Third Party Claim and shall furnish or cause to be furnished such records, information, and testimony, and attend such conferences, discovery proceedings, hearings, trials, or appeals, as may be reasonably requested in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingconnection with the defense.

Defense. The Indemnifying Party will have the right (i) Within thirty (30) days after delivery of an Indemnification Notice with respect to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the a Third Party Claim, jointly the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party; provided that (A) the Indemnifying Party may only assume control of such defense if (1) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other Liabilities that may be assessed against the Indemnified Party in connection with such Third Party Claim constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article IX and (2) the ad damnum in such Third Party Claim, taken together with the estimated costs of defense thereof and the Claimed Amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the amount of Losses for which the Indemnifying Party is potentially liable under this Article IX in connection with such Third Party Claim, and (B) the Indemnifying Party may not assume control of the defense of any Third Party Claim (I) by a Governmental Entity involving criminal Liability or (II) in which equitable relief (other than incidental equitable relief in any pleadings seeking such remedies as may be deemed appropriate by the court) is sought against the Indemnified Party or any of its Affiliates. The Indemnified Party is hereby authorized (but not obligated) prior to and during the thirty (30) day period referred to in the preceding sentence to file any motion, answer or other pleading and to take any other action which the Indemnified Party shall deem necessary or appropriate to protect its interests. (ii) If the Indemnifying Party similarly notified, to elect so elects to assume the defense of a Third Party Claim as permitted under Section 9.4(b)(i), then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof unless the Indemnified Party reasonably concludes (upon the advice of outside counsel) that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Claim, in each case such that it is inappropriate for a single outside counsel to represent both parties. Subject to Section 9.4(b)(i), the Non-controlling Party may participate in the defense of any Third Party Claim at its own expense (except to the extent otherwise contemplated by the preceding sentence), it being understood, however, that the Controlling Party shall control such defense in all respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to the Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim at unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party's own expense Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Indemnified Party and its Affiliates from further Liability, (3) involves no admission of wrongdoing by such the Indemnified Party or any of its Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. If the Indemnifying Party's own counsel (which counsel shall be reasonably acceptable Party is not permitted to Indemnitee)under the terms of this Agreement, and chooses not to, or does not, assume the defense of a Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the action and after notice from the Indemnifying Indemnified Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will shall have the right to employ its own counsel in any defend, compromise or settle such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it Third Party Claim or other Indemnitees that are different from or in addition to those available consent to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice entry of counsel judgment with respect to the Indemnitee) between the Indemnitee and the Indemnifying such Third Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be Claim at the expense of the Indemnifying Party; provided, however, the Indemnified Party shall not compromise or Parties. It is understood that settle such Third Party Claim or consent to the Indemnifying entry of judgment with respect to such Third Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, Claim without the prior written consent of each Indemniteethe Indemnifying Party, settle which consent shall not be unreasonably withheld, conditioned or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingdelayed.

Defense. If a Third Party Claim is made against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense thereof at its sole cost and expense, and, if the Indemnifying Party so chooses, it shall have twenty (20) days from its receipt of the Indemnification Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, that the Indemnifying Party shall not be entitled to assume the defense, and shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party, if (i) the claim for indemnification is with respect to a criminal Action; (ii) the claims seeks an injunction on, or other equitable relief against, the Indemnified Party; (iii) if the assumption of such defense by the Indemnifying Party would cause Buyer to lose coverage under the Environmental Insurance Policy or the R&W Insurance Policy or Buyer or any insurer is required to assume such defense under the terms thereunder; or (iv) in the reasonable opinion of counsel for the Indemnified Party, there is a reasonable likelihood of a conflict of interest between the Indemnifying Party and the Indemnified Party. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party so elects to assume the defense of a Third Party Claim (in accordance with this Section 8.5(b)), then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third Party Claim shall not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third Party Claim. If the Indemnifying Party assumes such defense (in accordance with this Section 8.5(b)), then the Indemnified Party shall have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense ofthereof and to employ counsel, any Third Party Claim at such Indemnifying Party's its own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee)expense, and assume the defense of the action and after notice separate from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing employed by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Partybeing understood, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the actionhowever, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in control such jurisdiction at any one time for all such indemnified party or partiesdefense. All such fees, disbursements and other charges will be reimbursed by If the Indemnifying Party promptly as they are incurredchooses to defend any Third Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third Party Claim. An Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party will of records that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not be liable for any enter into a settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Third Party shall, Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), except to the extent such settlement does not provide for liability or the creation of a financial or other obligation (including the imposition of an injunction or other equitable relief) on the part of the Indemnified Party, does not provide for any statement of liability, wrongdoing, criminal offense or finding or admission of any violation of Law by the Indemnified Party and provides, in customary form, for the full, complete and unconditional release of each IndemniteeIndemnified Party from all liabilities and obligations in connection with such Third Party Claim. If the Indemnifying Party (x) has not within the Notice Period notified the Indemnified Party of its election to assume defense of a Third Party Claim, (y) is not entitled to assume defense of a Third Party Claim under this Section 8.5(b), or (z) fails to defend such Third Party Claim actively and in good faith, then the Indemnified Party shall (upon further written notice) have the right to defend and compromise or settle or compromise of such Third Party Claim or consent to the entry of any judgment with respect to such Third Party Claim, in any pending or threatened claim, action or proceedings (whether or not any each case at the cost and expense of the Indemnifying Party. If the Indemnified Party is a party theretohas assumed the defense pursuant to this Section 8.5(b), unless it shall not agree to any settlement which imposes any obligation on the Indemnifying Party (including the imposition of an injunction or other equitable relief) or which provides for the any statement of liability, wrongdoing, criminal offense or finding or admission of any violation of Law by the Indemnifying Party without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed), and no such settlement, compromise or consent includes an unconditional release settlement shall be determinative of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingthe Indemnifying Party’s obligations under this Article 8.

Defense. The Indemnifying In the event of a Third Party Claim, the indemnifying party shall either (A) acknowledge and agree in writing that the Third Party Claim is a Claim for which indemnified party has responsibility if such Claim is adversely determined pursuant to this Agreement, or (B) not make the election under (A) or make the election under (A) under a reservation of rights without admitting that the Third Party Claim is a Claim for which indemnified party has responsibility if such Claim is adversely determined pursuant to this Agreement. In the event that the indemnifying party elects (A) above, it shall control the defense, compromise or settlement of such Third Party Claim, with counsel of its choice reasonably acceptable to the indemnified party and at the indemnifying party’s sole cost and expense, if the indemnifying party, if requested by the indemnified party, has provided evidence reasonably satisfactory to the indemnified party of the indemnifying party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the indemnified party may participate therein through separate counsel chosen by it and at its sole cost and expense. If the indemnifying party does not elect pursuant to (A) above, then (xx) the Third Party Claim shall not be deemed to be a claim indemnified by the indemnifying party, and neither party shall have waived any rights to assert that the Third Party Claim is or is not properly a claim subject to the indemnifying party’s indemnity obligations, (yy) both the indemnifying party and the indemnified party may, at their individual elections, participate in the defense of such Third Party Claim, but the indemnifying party will remain responsible for the costs of defense, including reasonable attorneys’ fees of the indemnified party should the Third Party Claim ultimately be determined to be subject to the indemnifying party’s indemnity obligation; and (zz) the indemnified party shall have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of compromise and settle the Third Party ClaimClaim on any basis believed reasonable, jointly with any other Indemnifying Party similarly notifiedin good faith, to elect to assume by the defense ofindemnified party, any and the indemnifying party will be bound thereby should the Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall ultimately be reasonably acceptable determined to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party be subject to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingindemnifying party’s indemnity obligation.

Defense. The Indemnifying Party will have If the right facts relating to participate in ora Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnitee Indemnified Party within seven Business Days after 15 days following its receipt of the notice of the Third Party Claimsuch claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense ofor the prosecution thereof, any Third including the employment of counsel or accountants at its cost and expense; provided, however, that during the interim the Indemnified Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel shall use its commercially reasonable efforts to take all action (which counsel shall be not including settlement) reasonably acceptable necessary to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party protect against further damage or loss with respect to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defenseLoss. The Indemnitee will Indemnified Party shall have the right to employ its own counsel separate from counsel employed by the Indemnity Obligor in any such actionaction and to participate therein, but the fees, fees and expenses and other charges of such counsel will shall be at the expense of such Indemnitee Indemnified Party's own expense, unless (1i) the employment of counsel thereof has been specifically authorized by the Indemnitee Indemnity Obligor, (ii) such Indemnified Party has been authorized in writing advised by counsel reasonably satisfactory to the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) Indemnity Obligor that there may be one or more legal defenses available to it or other Indemnitees that which are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to Indemnity Obligor and in the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense reasonable judgment of such action on behalf of the Indemnitee) counsel it is advisable for such Indemnified Party to employ separate counsel, or (4iii) the Indemnifying Party Indemnity Obligor has not in fact employed counsel failed to assume the defense of such action within a reasonable time after receiving notice of and employ counsel reasonably satisfactory to the commencement of Indemnified Party. Whether or not the actionIndemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in each of which cases the reasonable feesdefense or prosecution thereof and shall furnish such records, disbursements information and other charges of counsel will testimony and shall attend such conferences, discovery proceedings and trials as may be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, reasonably requested in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or partiestherewith. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will The Indemnity Obligor shall not be liable for any settlement of any action or such claim effected without its prior written consent (consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a third party claim, the Indemnity Obligor shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which consent the Indemnified Party may have any right or claim against such third party relating to such Loss. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will not be unreasonably withheld). No Indemnifying take no action in connection with any claim that would adversely affect the Indemnified Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingParty.

Defense. The If a Third-Party Claim is made against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in the defense thereof and, if the Indemnifying Party so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party so elects to assume the defense of a Third-Party Claim, then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that (i) prior to assuming the defense of such Third-Party Claim, the Indemnifying Party shall provide to the Indemnified Party an undertaking stating that such Indemnifying Party is able to and will assume the payment of all defense fees and costs and (ii) the Indemnifying Party’s assumption of the defense of such Third-Party Claim shall not signify any agreement, obligation or commitment on the part of the Indemnifying Party to assume or pay any amount awarded to a claimant in respect of such Third-Party Claim. If the Indemnifying Party assumes such defense, then the Indemnified Party shall have the right to participate in orthe defense thereof and to employ counsel, at its own expense, separate from the counsel employed by giving notice the Indemnifying Party, it being understood, however, that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend any Third-Party Claim, then the Parties shall cooperate in the defense or prosecution of such Third-Party Claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnitee Indemnifying Party of records that are reasonably relevant to such Third-Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party has not within seven ten (10) Business Days after receipt of notice of the Third an Indemnification Notice relating to a Third-Party Claim, jointly with any other Indemnifying Party similarly notified, to elect chosen to assume the defense of, any Third of a Third-Party Claim at or fails to defend such Indemnifying Party's own expense Third-Party Claim actively and by such Indemnifying Party's own counsel in good faith, then the Indemnified Party shall (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will upon further written notice) have the right to employ its own counsel in any such actiondefend and, but the feessubject to Section 8.05(c), expenses and other charges compromise or settle of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Third-Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise Claim or consent to the entry of any judgment with respect to such Third-Party Claim, in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release each case at the cost and expense of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingthe Indemnifying Party.

Defense. The Indemnifying Party will have If any Proceeding referred to in Section 10.9.1 is brought against an indemnified party and it gives notice to the right indemnifying party of the commencement of such Proceeding, the indemnifying party will, unless the claim is a Tax Claim, be entitled to participate in orsuch Proceeding and, by giving notice to the Indemnitee within seven Business Days after receipt extent that it wishes (unless (i) the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the indemnifying party fails to provide reasonable assurance to the indemnified party of notice of the Third Party Claimits financial capacity to defend such Proceeding and provide indemnification with respect to such Proceeding), jointly with any other Indemnifying Party similarly notified, to elect to assume the defense ofof such Proceeding with counsel satisfactory to the indemnified party and, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party indemnifying party to the Indemnitee indemnified party of its election to assume the defense of such Proceeding, the indemnifying party will not, as long as it diligently conducts such defense, the Indemnifying Party will not be liable to the Indemnitee indemnified party under this Section 10 for any legal fees of other counsel or any other expenses except as provided below and except for with respect to the reasonable costs defense of investigation such Proceeding, in each case subsequently incurred by the Indemnitee indemnified party in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such action, but the fees, expenses and other charges defense of such counsel will be at Proceeding, other than reasonable costs of investigation. If the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such action on behalf claims may be effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the Indemnitee) or rights of any Person and no effect on any other claims that may be made against the indemnified party, and (4B) the Indemnifying Party has not sole relief provided is monetary damages that are paid in fact employed counsel full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within ten (10) days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume the defense of such action within a reasonable time after receiving notice of Proceeding, the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel indemnifying party will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with bound by any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice determination made in such jurisdiction at Proceeding or any one time for all such indemnified party compromise or parties. All such fees, disbursements and other charges will be reimbursed settlement effected by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingindemnified party.

Defense. The Upon receipt of notice under Section 9.2(a) from the Indemnitee, the Indemnifying Party will have the right duty to participate in oreither compromise or defend, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's its own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and assume the defense in any event not more than [**] days after receipt of the action Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 9 and after notice from of its intention to either compromise or defend such Action. Once the Indemnifying Party gives such notice to the Indemnitee of its election to assume the defenseIndemnitee, the Indemnifying Party will is not be liable to the Indemnitee for the fees of other counsel or any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with such defense, other than the defenseIndemnitee’s reasonable costs of investigation and cooperation. The However, the Indemnitee will have the right to employ its own separate counsel in any such action, but and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses and other charges of such counsel will be at the expense of such Indemnitee unless counsel) if: (1i) the employment use of the counsel by the Indemnitee has been authorized in writing chosen by the Indemnifying Party, Party would present such counsel with a conflict of interest; (2ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee has reasonably concluded (based on advice of counsel) concludes that there may be legal defenses available to it or other Indemnitees that are different from or in addition additional to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action Action on the Indemnitee’s behalf); (iii) the Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after receiving the Indemnitee’s notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of such Action; (iv) the Indemnifying Party denies or Parties. It is understood fails to timely admit its obligation to defend and indemnify the Action; or (v) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Damages that could have a materially adverse effect on the ongoing business of the Indemnitee; provided, however, that in no event shall the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in be obligated to bear the same jurisdiction, be liable for the reasonable fees, disbursements costs and other charges expenses of more than one (1) separate firm (in addition to local counsel) admitted to practice counsel for all of the other Party’s Indemnitees in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingAction.

Defense. The If any Action that might reasonably be expected to result in an Indemnifiable Claim is asserted or threatened by a third party against any Indemnified Party, the Indemnifying Party will may elect to control the defense thereof with experienced counsel reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, if the Indemnifying Party, within fifteen (15) days after receipt of a notice of such Action fails to give written notice to the Indemnified Party that the Indemnifying Party shall undertake the defense thereof or thereafter fails to timely assume such defense, then the Indemnified Party shall have the right to defend, compromise or settle the Action for the account of the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. If, after the Indemnifying Party has undertaken the defense of the Action, the Indemnified Party reasonably believes (and gives notice thereof to the Indemnifying Party) that an Indemnifiable Claim may materially adversely affect the business or operations of the Indemnified Party, then the Indemnified Party shall have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from Action at its own expense, subject to the reasonable direction of the other party. Each of the Indemnifying Party and the Indemnified Party shall give all reasonable assistance to the Indemnitee of its election to assume the defenseother party in connection therewith. In any case, the Indemnifying Indemnified Party will not be liable shall, subject to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such actionSection 10.10, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those make available to the Indemnifying PartyParty and its attorneys, (3) a conflict accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such Action or potential conflict exists (based on advice such other matter as to which the Indemnified Party is or was required to give notice. The party having control of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf an Action shall notify the other party of the Indemnitee) every proposal, oral or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the actionwritten, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise which it receives or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingmakes.

Defense. The Indemnifying Party will have If any of the right indemnified parties is made or threatened to participate be ------- made a defendant in oror party to any action or proceeding, judicial or administrative, instituted by giving any third party for the liability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to this Paragraph I (any such third party action or proceeding being referred to as an "Indemnification Claim"), the indemnified party or parties shall give prompt notice thereof to the Indemnitee within seven Business Days after receipt of indemnifying party; provided that the failure to give such notice of shall not affect the Third Party indemnified -------- party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, jointly with any other Indemnifying Party similarly notified, to elect to assume the defense of, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable to Indemnitee), and assume the defense of the action and after notice from the Indemnifying Party to the Indemnitee of its election to assume the defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any such actionexpense, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing by the Indemnifying Party, (2) the Indemnitee has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to the Indemnitee) between the Indemnitee and the Indemnifying Party (in which case the Indemnifying Party will not have the right to direct the defense of such action on behalf of the Indemnitee) or (4) the Indemnifying Party has not in fact employed counsel to assume the defense of any such action within a reasonable time after receiving notice of claim or any litigation to which this Paragraph 1 may be applicable, by counsel reasonably satisfactory to the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Indemnifying Party or Parties. It is understood that the Indemnifying Party or Parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees; provided, disbursements that the indemnified party or parties shall be entitled at any time, -------- at its or their own cost and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will expense (which expense shall not be liable for any settlement recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of any action a conflict of interest, may not adequately represent, the indemnified party or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party theretoparties' interests), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of to participate in such claim, action or proceedingproceeding and to be represented by attorneys of its or their own choosing. If the indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of any such claim or litigation, shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of a full and complete release from all liability in respect to such claim or litigation.

Defense. The Except as otherwise provided herein, the Indemnifying Party will have the right to participate in or, by giving notice to the Indemnitee within seven Business Days after receipt of notice of the Third Party Claim, jointly with any other Indemnifying Party similarly notified, to may elect to assume the defense ofcompromise or defend, any Third Party Claim at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably acceptable satis- factory to Indemniteethe Indemnified Party), and assume the defense of the action and after notice from any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Indemnitee Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indem- nifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to assume do so as herein provided, or otherwise abandons the defensedefense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice to any of its rights as against the Indemnifying Party), compro- mise or defend such Third Party will not be liable to the Indemnitee for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the Indemnitee in connection with the defense. The Indemnitee will have the right to employ its own counsel in any Claim (until such action, but the fees, expenses and other charges of such counsel will be at the expense of such Indemnitee unless (1) the employment of counsel by the Indemnitee has been authorized in writing defense is assumed by the Indemnifying Party, ) and (2ii) the Indemnitee has costs and ex- penses of the Indemnified Party incurred in connection there- with shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably concluded (conclude, based on upon advice of its outside legal counsel, that (x) that there may be legal is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to it or other Indemnitees that the Indemnified Party which are different from or in addition additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, (3) a conflict or potential conflict exists (based on advice of counsel to then the Indemnitee) between the Indemnitee and the Indemnifying Indemnified Party (in which case the Indemnifying Party will not shall have the right to direct the defense of such action on behalf Third Party Claim with the participation of the Indemnitee) or (4) Indemnifying Party. In such an event, the Indemnifying Party has not in fact employed shall pay the reasonable fees and disbursements of counsel of the Indemnifying Party and one counsel to assume all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnify- ing Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, the Indemnifying Party may settle such claim without the consent of the Indemnified Party) over the objection of the other; pro- vided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of Third Party Claim. If the Indemnifying Party or Parties. It is understood that chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any per- sonnel or Parties shall notany books, in connection with any proceeding records or related proceedings in the same jurisdictionother documents within its con- trol that are reasonably necessary or appropriate for such de- fense, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (in addition to local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the Indemnifying Party promptly as they are incurred. An Indemnifying Party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of each Indemnitee, settle or compromise or consent subject to the entry receipt of any judgment in any pending or threatened claim, action or proceedings (whether or not any Indemnified Party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each Indemnitee from all liability arising or that may arise out of such claim, action or proceedingappropriate confidentiality agreements.