25A - AGMT - SALE OF YMCA PROPERTY

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with Optionor in connection therewith; and (b) may employ, at any time, separate counsel to represent it; provided, that Optionee is solely responsible for the costs and expenses of any such separate counsel. Notwithstanding anything to the contrary in this Section, Optionee may defend an Optionor Indemnified Claim with counsel of its own choosing and without the Optionor's participation if: (a) the Optionor Indemnified Claim is one for which Optionee properly gave Optionor a Claim Notice under this Section, and Optionor fails to assume the defense or refuses to defend the Optionor Indemnified Claim under this Section; (b) the Optionor Indemnified Claim seeks only an injunction or other equitable relief against Optionee Indemnified Party; or (c) Optionee Indemnified Party reasonably believes: (i) that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to Optionor; and (ii) counsel for Optionor could not adequately represent the interest of Optionee Indemnified Party because such interest could be in conflict with those of Optionor; or (iii) such action or proceeding involves, or could have a material effect on, any material matter beyond the scope of the indemnification or defense obligations of Optionor. If Optionee Indemnified Party assumes control of the defense under this Section, Optionor shall: (a) reimburse Optionee Indemnified Party promptly and periodically for the reasonable costs properly incurred in defending against the Optionor Indemnified Claim (including reasonable attorneys' fees and expenses); and (b) remain responsible to Optionee Indemnified Party for any Optionee Losses indemnified under this Section. Optionor shall give prompt written notice to Optionee of any proposed settlement of a Optionor Indemnified Claim. Optionor may not, without Optionee's prior written consent, which Optionee shall not unreasonably withhold, condition or delay, settle or compromise any claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder unless such settlement, compromise or consent: (a) includes an unconditional release of Optionee Indemnified Party from all liability arising out of such claim; (b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Optionee Indemnified Party; and (c) does not contain any equitable order, judgment or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains or interferes with the business of Optionee Indemnified Party. Optionee Indemnified Party may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of Optionor, which Optionor shall not unreasonably withhold, condition or delay, wzless: (a) if the Optionor Indemnified Claim is one for which Optionee properly gave Optionor a Claim Notice under this Section, and Optionor fails to assume the defense or refuses to defend the Optionor Indemnified Claim under this Section; or (b) such settlement, compromise or consent: (i) includes an unconditional release of Optionor from all liability arising out of such claim; (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Optionor; and (iii) does not contain any equitable order, judgment or tern (other than the fact of payment or the amouuit of such payment) that in any manner affects, restrains or interferes with the business of Optionee Indemnified Party. The obligations of Optionee Indemnified Party and Optionor under this Section shall survive the Closing or earlier termination of the Disposition Agreement and the expiration or earlier termination of this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURES FOLLOW] 17 51528687.8 25A-1 9