With respect to any Third-Party Claim where indemnification is sought against the Equity Holders and recovery for which is limited solely against the Indemnity Escrow Fund pursuant to this terms of this [Article IX], then Schultz shall be considered the Indemnifying Party for purposes of such Third-Party Claim; provided, however, that if Losses in relation to such Third-Party Claim could reasonably be expected to exceed the Indemnity Escrow Fund or if recovery in respect thereof is not limited to the Indemnity Escrow Fund, then the Representative shall be the Indemnifying Party for purposes of such Third-Party Claim. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party within thirty (30) days (the “Dispute Period”), to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, however, that the Indemnifying Party shall not have the right to defend or direct the defense of any such Third Party Claim # that is asserted directly by or on behalf of a Person that is a Material Customer or Material Supplier, # that seeks an injunction or other non-monetary relief against the Indemnified Parties, # unless the Indemnifying Party shall have confirmed to the Indemnified Party, in writing and within the Dispute Period, such Indemnifying Party’s obligation to indemnify the Indemnified Party against any Losses that may result from the Third Party Claim (subject to the limitations on indemnification contained in this [Article IX]), or # if the insurer under the R&W Insurance Policy shall have assumed the defense of such Third Party Claim in accordance with the terms of the R&W Insurance Policy. In the event that the Indemnifying Party properly assumes the defense of any Third Party Claim, subject to [Section 9.3(c)], it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees, expenses and other disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, # there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party or # there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party (provided the Indemnifying Party shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any Indemnification Claim). If the Indemnifying Party does not elect within the Dispute Period to assume control of the defense of any Third Party Claim, the Indemnified Party may defend against, negotiate, settle or otherwise handle such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim, subject to [Section 9.3(c)] and the other limitations set forth herein. The Representative, Schultz and Purchaser shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.

Notwithstanding anything in this [Section 9.3] to the contrary, in the event that the Indemnifying Party has elected to assume control of the defense of any Third Party Claim, the Indemnifying Party shall not, without the written consent of the Indemnified Party (and Schultz in the event that Schultz is not the Indemnifying Party), which consent may not be unreasonably withheld, conditioned or delayed by the Indemnified Party (or Schultz, as applicable), settle and/or compromise any Third Party Claim (each a “Settlement”); provided, however, that the Indemnifying Party may effect a Settlement without such consent if, with respect to such Settlement # the claimant and such Indemnifying Party provide to such Indemnified Party and its Affiliates and representatives an unqualified release from all liability in respect of the Third Party Claim, # such Settlement is limited to monetary damages to be paid by the Indemnifying Party or, with the written consent of the Indemnified Party and Schultz (either of which consent may not be unreasonably withheld, conditioned or delayed), from the Indemnity Escrow Fund, and # such Settlement does not contain any admission of guilt or liability. If the Indemnified Party has properly assumed the defense pursuant to [Section 9.3(b)], it shall not agree to any settlement without the written consent of the Indemnifying Party and Schultz (which consent shall not be unreasonably withheld or delayed).