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independent counsel of its own choosing (which Optionor shall find reasonably satisfactory) and <br />at Optionee's sole cost and expense, the settlement or defense thereof. If Optionee assumes <br />control of the defense under this Section, Optionor Indemnified Party (a) shall fully cooperate <br />with Optionee in connection therewith; and (b) may employ, at any time, separate counsel to <br />represent it; provided, that Optionor Indemnified Party is solely responsible for the costs and <br />expenses of any such separate counsel. Notwithstanding anything to the contrary in this Section, <br />Optionor Indemnified Party may defend an Optionee Indemnified Claim with counsel of its own <br />choosing and without the Optionee's participation if: (a) the Optionee Indemnified Claim is one <br />for which Optionor properly gave Optionee a Claim Notice under this Section, and Optionee <br />fails to assume the defense or refuses to defend the Optionee Indemnified Claim under this <br />Section; (b) the Optionee Indemnified Claim seeks only an injunction or other equitable relief <br />against Optionor Indemnified Party; or (c) Optionor Indemnified Party reasonably believes: (i) <br />that there are one or more legal or equitable defenses available to it that are different from or in <br />addition to those available to Optionee; and (ii) counsel for Optionee could not adequately <br />represent the interest of Optionor Indemnified Party because such interest could be in conflict <br />with those of Optionee; or (iii) such action or proceeding involves, or could have a material <br />effect on, any material matter beyond the scope of the indemnification or defense obligations of <br />Optionee. If Optionor Indemnified Party assumes control of the defense under this Section, <br />Optionee shall: (a) reimburse Optionor Indemnified Party promptly and periodically for the <br />reasonable costs properly incurred in defending against the Optionee Indemnified Claim <br />(including reasonable attorneys' fees and expenses); and (b) remain responsible to Optionor <br />Indemnified Party for any Optionor Losses indemnified under this Section. Optionee shall give <br />prompt written notice to Optionor of any proposed settlement of an Optionee Indemnified Claim. <br />Optionee may not, without Optionor's prior written consent, which Optionor shall not <br />unreasonably withhold, condition or delay, settle or compromise any claim or consent to the <br />entry of any judgment regarding which indemnification is being sought hereunder unless such <br />settlement, compromise or consent: (a) includes an unconditional release of Optionor <br />Indemnified Party from all liability arising out of such claim; (b) does not contain any admission <br />or statement suggesting any wrongdoing or liability on behalf of Optionor Indemnified Party; <br />and (c) does not contain any equitable order, judgment or term (other than the fact of payment or <br />the amount of such payment) that in any manner affects, restrains or interferes with the business <br />of Optionor Indemnified Party. Optionor Indemnified Party may not settle or compromise any <br />claim or consent to the entry of any judgment regarding which it is seeking indemnification <br />hereunder without the prior written consent of Optionee, which Optionee shall not unreasonably <br />withhold, condition or delay, unless: (a) if the Optionee Indemnified Claim is one for which <br />Optionor properly gave Optionee a Claim Notice under this Section, and Optionee fails to <br />assume the defense or refuses to defend the Optionee Indemnified Claim under this Section; or <br />(b) such settlement, compromise or consent: (i) includes an unconditional release of Optionee <br />from all liability arising out of such claim; (ii) does not contain any admission or statement <br />suggesting any wrongdoing or liability on behalf of Optionee; and (iii) does not contain any <br />equitable order, judgment or term (other than the fact of payment or the amount of such <br />payment) that in any manner affects, restrains or interferes with the business of Optionor <br />Indemnified Party. The obligations of Optionee and Optionor Indemnified Party under this <br />Section shall survive the Closing or earlier termination of the Disposition Agreement and the <br />expiration or earlier termination of this Agreement. <br />26. Optionor Indemnity. Subject to the terms and conditions set forth in this Section, <br />15 <br />51528687.9 <br />