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Optionor assumes control of the defense under this Section, Optionee Indemnified Party (a) shall <br />fully cooperate with Optionor in connection therewith; and (b) may employ, at any time, separate <br />counsel to represent it; provided, that Optionee Indemnified Party is solely responsible for the <br />costs and expenses of any such separate counsel. Notwithstanding anything to the contrary in <br />this Section, Optionee Indemnified Patty may defend an Optionor Indemnified Claim with <br />counsel of its own choosing and without the Optionor's participation if: (a) the Optionor <br />Indemnified Claire is one for which Optionee properly gave Optionor a Claim Notice under this <br />Section, and Optionor fails to assume the defense or refuses to defend the Optionor Indemnified <br />Claim under this Section; (b) the Optionor Indemnified Claim seeks only an injunction or other <br />equitable relief against Optionee Indemnified Party; or (c) Optionee Indemnified Party <br />reasonably believes: (i) that there are one or more legal or equitable defenses available to it that <br />are different from or in addition to those available to Optionor; and (ii) counsel for Optionor <br />could not adequately represent the interest of Optionee Indemnified Party because such interest <br />could be in conflict with those of Optionor; or (iii) such action or proceeding involves, or could <br />have a material effect on, any material matter beyond the scope of the indemnification or defense <br />obligations of Optionor. If Optionee Indemnified Party assumes control of the defense under this <br />Section, Optionor shall: (a) reimburse Optionee Indemnified Party promptly and periodically for <br />the reasonable costs properly incurred in defending against the Optionor Indemnified Claim <br />(including reasonable attorneys' fees and expenses); and (b) remain responsible to Optionee <br />Indemnified Party for any Optionee Losses indemnified under this Section. Optionor shall give <br />prompt written notice to Optionee of any proposed settlement of an Optionor Indemnified Claim. <br />Optionor may not, without Optionor's prior written consent, which Optionee shall not <br />mieasonably 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 Optionee <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 Optionee 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 Optionee Indemnified Party. Optionee 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 Optionor, which Optionor shall not unreasonably <br />withhold, condition or delay, unless: (a) if the Optionor Indemnified Claim is one for which <br />Optionee properly gave Optionor a Claim Notice under this Section, and Optionor fails to <br />assume the defense or refuses to defend the Optionor Indemnified Claim under this Section; or <br />(b) such settlement, compromise or consent: (i) includes an unconditional release of Optionor <br />from alI liability arising out of such claim; (ii) does not contain any admission or statement <br />suggesting any wrongdoing or liability on behalf of Optionor; 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 Optionee <br />Indemnified Party. The obligations of Optionee Indemnified Party and Optionor 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 />[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURES FOLLOW] <br />17 <br />51528687,9 <br />