Common use of Assertion of Claims Clause in Contracts

Assertion of Claims. (a) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.

Assertion of Claims. (a) In the event that a Person (the “"Indemnified Party”") desires to assert its right to indemnification from a Person (an “"Indemnifying Party”") required to indemnify such Indemnified Party under this Section 12Article XII, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “"Claim”"), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND If the Indemnifying Party has undertaken the defense of a Claim and (Ii) IF THERE IS A REASONABLE EXPECTATION THAT if there is a reasonable expectation that (Xx) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments or (Yy) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYthe Indemnified Party or Parties may have legal defenses available to it or them that are different from or additional to the defenses available to the Indemnifying Party, OR or (IIii) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTYif the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHTthe Indemnified Party shall nevertheless have the right, AT THE INDEMNIFYING PARTY’S COST AND EXPENSEat the Indemnifying Party's cost and expense, TO DEFEND SUCH CLAIMto defend such Claim.

Assertion of Claims. All claims for indemnification by Seller pursuant to SECTION 8.3 hereof or Buyer pursuant to SECTION 8.4 hereof, or any other indemnification provision of this Agreement, shall be asserted and resolved as follows: (a) Any person claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness notify the Indemnifying Party of the Losses, specifying the nature and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the "Claim Notice"). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such Losses if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the Losses is not prejudiced. The Indemnifying Party shall have thirty (30) days from the date the Claim Notice is given in accordance with the notice provisions hereof (the "Notice Period") to notify the Indemnified Party (x) whether it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses, and (y) whether it desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Losses; which election to defend may be made without prejudicing the Indemnifying Party as to its liability hereunder, other than with respect to the costs of defense. Notwithstanding the foregoing, any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. (A) In the event that a Person (the “Indemnifying Party notifies the Indemnified Party”) Party within the Notice Period that it desires to assert its defend the Indemnified Party against such Losses, except as hereinafter provided, the Indemnifying Party shall have the right to indemnification from defend by all appropriate proceedings, and with counsel of its own choosing, in appropriate proceedings, which proceedings shall be promptly settled or prosecuted by the Indemnifying Party to a Person (an “final conclusion. If the Indemnified Party desires to participate in any such defense or settlement, it may do so at its sole cost and expense but it shall have no right to control the defense of such proceeding. If requested by the Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give agrees to cooperate with the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from its counsel in contesting any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent Losses that the Indemnifying Party is actually prejudiced by elects to contest, or, if appropriate and related to the failure to so notify promptly.claim in question, in making any counterclaim against the (bB) The Indemnified Party shall not settle or compromise any Claim without the written consent of If the Indemnifying Party unless does not notify the Indemnified Party agrees in writing within 30 days after the receipt of a Claim Notice that it elects to forego any and all claims for indemnification from undertake the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claimdefense thereof, the Indemnified Party shall have the right to undertake defend at the defense, compromise or settlement expense of such Claim on behalf the Indemnifying Party the claim with counsel of and for the account and risk of its choosing reasonably satisfactory to the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim any claim at any time prior to settlement, compromise settlement or final determination thereof. Any such defense shall be prosecuted promptly and vigorously by the Indemnified Party. In the case of either (A) or (B), if the Indemnifying Party has not yet admitted its liability for a claim the Indemnified Party shall send a written notice to the Indemnifying Party of any proposed settlement of any claim received by the Indemnified Party. The Indemnifying Party shall have an option for 30 days following receipt of such notice to (i) admit liability for the claim if it has not already done so, and (ii) if liability has been admitted, reject, in its reasonably judgment, the proposed settlement. Failure to reject such settlement in writing within such 30 day period shall be deemed an acceptance of such settlement. If the Indemnified Party settles any such claim over the objection of the Indemnifying Party, the Indemnified Party shall thereby waive any right to indemnify therefor, unless the Indemnifying Party has prior to the time of settlement admitted liability for such claim in writing. (cb) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND In the event any Indemnified Party should have a claim for Losses against any Indemnifying Party hereunder that does not involve a Loss being asserted against or sought to be collected from it by a third party (Ifor example, but without limitation, a Loss resulting from a breach of a representation, warranty or covenant), the Indemnified Party shall send a Claim Notice (including an explanation, in reasonable detail, of the basis for such claim, the particular representation, warranty or covenant claimed to be breached by the Indemnifying Party, and the manner in which the amount claimed to be due was computed, together with all documents in the possession of the Indemnified Party relating to such claim for Losses) IF THERE IS A REASONABLE EXPECTATION THAT with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (X30) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYdays from the date the Claim Notice is given that it disputes such claim for Losses, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIMthe amount of such Losses shall be conclusively deemed a liability of the Indemnifying Party hereunder.

Assertion of Claims. All claims for indemnification by either of the Sellers pursuant to Section 12.12 hereof or an Acquiror Indemnified Party pursuant to Section 12.4 hereof, or any other provision of the Agreement except Section 12.3, shall be asserted and resolved as follows: (a) Any person claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that any Losses are asserted against or sought to be collected from an Indemnified Disclosing Party a third party, said Indemnified Party shall with reasonable promptness notify the Indemnifying Party of the Losses, specifying the nature and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the "Claim Notice"). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such Losses if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of the Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the Losses is not prejudiced, but only to the extent such notification within such time period is practicable. The Indemnifying Party shall have thirty (30) days from the date the Claim Notice is given in accordance with the notice provisions hereof (the "Notice Period") to notify the Indemnified Party (x) whether it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses; and (y) whether it desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Recipient against such Losses; which election to defend may be made without prejudicing the Indemnifying Recipients to its liability hereunder, other than with respect to the costs of defense. Notwithstanding the foregoing, the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. (A) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, notifies the Indemnified Party will give within the Indemnifying Party prompt notice of Notice Period that it desires to defend the claim giving rise thereto (a “Claim”)Indemnified Recipient against such Losses and except as hereinafter provided, and the Indemnifying Party shall undertake have the right to defend by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted by them to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense thereof (unless or settlement, it may do so at its sole cost and expense. If requested by the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure , the Indemnified Recipient agrees to promptly notify cooperate with the Indemnifying Party hereunder shall not relieve the Indemnifying Party of Recipient and its obligations hereunder, except to the extent counsel in contesting any Losses that the Indemnifying Party is actually prejudiced by elects to contest, or, if appropriate and related to the failure claim in question, in making any counterclaim against the person asserting the third party Losses, or any cross-complaint against any person. No claim with respect to so notify promptly. (b) The Indemnified which the Indemnifying Party shall not settle has admitted its liability may be settled or compromise any Claim otherwise compromised without the prior written consent of the Indemnified Party. Any party settling or compromising a claim in violation of the preceding sentence shall be solely liable for the amount of the settlement or compromise. (B) If the Indemnifying Party unless does not notify the Indemnified Party agrees in writing within thirty (30) days after the receipt of a Claim Notice that it elects to forego any and all claims for indemnification from undertake the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claimdefense thereof, the Indemnified Party shall have the right to undertake defend at the defense, compromise or settlement expense of such Claim on behalf the Indemnifying Party the claim with counsel of and for the account and risk of its choosing reasonably satisfactory to the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim any claim at any time prior to settlement, compromise settlement or final determination thereof. Any such defense shall be prosecuted promptly and vigorously by the Indemnified Party. In the case of either (A) or (B), if the Indemnifying Party has not admitted its liability for a claim, the Indemnified Party shall send a written notice to the Indemnifying Party of any proposed settlement of any claim received by the Indemnified Party. The Indemnifying Party shall have an option for thirty (30) days following receipt of such notice to (i) admit liability for the claim if it has not already done so and (ii) if liability has been admitted, reject, in its reasonably judgment, the proposed settlement. Failure to reject such settlement within such 30-day period shall be deemed an acceptance of such settlement. If the Indemnified Party settles any such claim over the objection of the Indemnifying Party, the Indemnified Party shall thereby waive any right to indemnify therefor, unless the Indemnifying Party has prior to the time of settlement admitted liability for such claim. Notwithstanding any provisions hereof to the contrary, the Indemnifying Party may defend any claim in the manner described herein under a reservation of rights as to liability for such claim. (cb) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND In the event any Indemnified Party should have a claim for Losses against any Indemnifying Party hereunder that does not involve a Loss being asserted against or sought to be collected from it by a third party (Ifor example, but without limitation, a Loss resulting from a breach of a representation, warranty or covenant), the Indemnified Party shall send a Claim Notice (including an explanation, in reasonable detail, of the basis for such claim, the particular representation, warranty or covenant claimed to be breached by the Indemnifying Party, and the manner in which the amount claimed to be due was computed, together with all documents in the possession of the Indemnified Party relating to such claim for Losses) IF THERE IS A REASONABLE EXPECTATION THAT with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (X30) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYdays from the date the Claim Notice is given that it disputes such claim for Losses, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIMthe amount of such Losses shall be conclusively deemed a liability of the Indemnifying Party hereunder.

Assertion of Claims. (a) In the event that a Person party desires to make a claim under this Article IX (an "Indemnification Claim"), the party to be indemnified (the “"Indemnified Party”") desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the other party (the "Indemnifying Party Party") prompt notice of any such Indemnification Claim and, in the claim giving rise thereto (a “Claim”)event such Indemnification Claim involves any suit, and action or other proceeding, pending or threatened, the Indemnifying Party shall will undertake the defense thereof (unless by representatives chosen by it which are reasonably satisfactory to the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Indemnified Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party such party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the such failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claimgive notice. However, if If the Indemnifying Party, within a reasonable time after notice of any such Indemnification Claim, fails to defend such Indemnification Claim, the Indemnified Party shall will have the right to undertake the defense, compromise or settlement of such Indemnification Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Indemnification Claim at any time prior to settlement, compromise or final determination thereof. The Indemnified Party shall, at the request and expense of the Indemnifying Party, provide reasonable assistance in the defense of any such Indemnification Claim. If the Indemnifying Party has undertaken defense of an Indemnification Claim and if there is a reasonable probability that (i) an Indemnification Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments or (ii) the Indemnified Party or parties may have legal defenses available to it which are different from or additional to the defenses available to the Indemnifying Party, the Indemnified Party shall have the right, at the Indemnifying Party's expense, to jointly control the defense, compromise or settlement of such Indemnification Claim. In all events an Indemnified Party shall have the right to participate in its defense at its own expense. Notwithstanding the foregoing, no Indemnifying Party shall be liable for any compromise or settlement of any action or proceeding effected without its written consent (which shall not be unreasonably withheld). The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise any Indemnification Claim or consent to the entry of any judgment with respect to the Indemnified Party which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such Indemnification Claim. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.

Assertion of Claims. No claim shall be brought under Sections 9.2 or 9.3 hereof unless the Indemnified Persons, or any of them provide to Indemnifying Persons (a) In prompt and timely written notice prior to the event that a Person end of the applicable date as set forth in Section 9.1(a) of the existence of any such claim, specifying the nature and basis of such claim and the amount thereof, to the extent known, or (b) prompt and timely written notice prior to the “Indemnified Party”end of the applicable date as set forth in Section 9.1(a) desires pursuant to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 129.5 of any Third Party Claim (as defined below), the Indemnified Party will existence of which might give rise to such a claim; provided, however, that the failure so to provide such notice to the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall Persons will not relieve the Indemnifying Party of its obligations hereunderPersons from any liability which they may have to the Indemnified Persons under this Agreement or otherwise, except to the extent that the Indemnifying Person reasonably demonstrates that such failure results in the loss or compromise of any rights or defenses of the Indemnifying Persons and that the Indemnifying Persons were not otherwise aware of such action or claim. Upon the giving of such written notice as aforesaid, the Indemnified Persons, or any of them, shall have the right to commence legal proceedings prior or subsequent to the applicable Survival Date for the enforcement of their rights under Sections 9.2 or 9.3 hereof, as the case may be, resulting from the assertion of liability by third parties (each, a “Third Party is actually prejudiced Claim”), which shall be subject to the following terms and conditions: (a) The Indemnified Persons shall promptly give written notice to the Indemnifying Persons of any Third Party Claim that might give rise to any Loss by the Indemnified Persons, stating the nature and basis of such Third Party Claim, and the amount thereof to the extent known. Such notice shall be accompanied by copies of all relevant documentation with respect to such Third Party Claim, including, without limitation, any summons, complaint or other pleading that may have been served, any written demand or any other document or instrument. Subject to the notice requirements of Section 9.1(a), the failure to so notify promptlyprovide written notice to the Indemnifying Persons will not relieve the Indemnifying Persons from any liability which they may have to the Indemnified Persons unless the Indemnifying Person reasonably demonstrates that such failure directly results in the loss or compromise of any rights or defenses of the Indemnifying Persons and that the Indemnifying Persons were not otherwise aware of such action or claim. (b) The If an Indemnified Party shall not settle or compromise any Claim without Person gives timely notice in accordance with the written consent notice requirements of Section 9.1(a) to the Indemnifying Person pursuant to Section 9.5(a) of the Indemnifying assertion of a Third Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party Indemnifying Person shall have be entitled to participate in and assume the right to undertake the defense, compromise or settlement defense of such Third Party Claim on behalf of and for using counsel reasonably satisfactory to the account and risk of Indemnified Person; provided, however, that the Indemnifying Party, subject to the right of the Indemnifying Party Person shall not be entitled to assume the defense of such Third Party Claim at if (i) the Indemnifying Person is also a Person against whom the Third Party Claim is made and the Indemnified Person determines in good faith that (A) joint representation would be inappropriate, or present a conflict of interest, or (B) there are legal defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Person; (ii) the Indemnifying Person fails to provide reasonable assurance to the Indemnified Person of its financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim; (iii) the Third Party Claim seeks, or is reasonably likely to seek or result in, the imprisonment of, the imposition of a criminal penalty or fine against, or the imposition of an equitable remedy with respect to, the Indemnified Persons; or (iv) the damages sought in such Third Party Claim, taken together with the estimated costs of defense thereof and the amount claimed by the Indemnified Persons with respect to any time prior unresolved claims for indemnification then pending, is greater than the applicable limitation set forth in Section 9.2. Subject to settlementthe foregoing, after notice from the Indemnifying Person to the Indemnified Person of its election to assume the defense of such Third Party Claim, the Indemnifying Person shall, so long as it diligently conducts such defense, (i) not be liable to the Indemnified Person under this Section 9.5 for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim subsequently incurred by the Indemnified Person in connection with the defense of such Third Party Claim and (ii) have full control over the conduct of such proceeding. If the Indemnifying Person assumes the defense of a Third Party Claim, (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or final settlement of such Third Party Claim may be effected by the Indemnifying Person without the Indemnified Person’s written consent unless (C) there is no finding or admission of any violation of Law or any violation of the rights of any Person; (D) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and (E) the Indemnified Person shall have no liability or obligation (including without limitation any obligation to take or to refrain from taking any action) with respect thereto. If notice is given to an Indemnifying Person of the assertion of any Third Party Claim and the Indemnifying Person does not, within ten (10) days after such notice is given, give notice to the Indemnified Person of its election to assume the defense of such Third Party Claim, the Indemnifying Person will be deemed to have waived the right to defend such Third Party Claim and shall be bound by any determination thereofmade in such Third Party Claim or any compromise or settlement effected by the Indemnified Person. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND Notwithstanding the foregoing, if an Indemnified Person determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Person may, by notice to the Indemnifying Person, assume the exclusive right to defend, compromise or settle such Third Party Claim, but the Indemnifying Person will not be bound by any determination of any Third Party Claim so defended for the purposes of this Agreement or any compromise or settlement effected without its consent (Iwhich shall not be unreasonably withheld). (d) IF THERE IS A REASONABLE EXPECTATION THAT With respect to any Third Party Claim subject to indemnification under this Section 9.5: (Xi) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR both the Indemnified Person and the Indemnifying Person, as the case may be, shall keep the other Person fully informed of the status of such Third Party Claim and any related proceedings at all stages thereof where such Person is not represented by its own counsel, (Yii) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR the Parties agree (IIeach at its own expense) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIMto render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Third Party Claim and (iii) the Parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all Confidential Information and the attorney-client and work-product privileges.

Assertion of Claims. (a) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM. **** Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Assertion of Claims. All claims for indemnification by any of the Seller Indemnitees or any of the Purchaser Indemnitees under Section 7.2 or any other provision of this Agreement or any Document shall be asserted and resolved as follows: (ai) Any person claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness and in writing notify the Indemnifying Party of the Losses, specifying the nature of and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the "Claim Notice"). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such Losses if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the Losses is not prejudiced, but only to the extent such notification within such time period is practicable. The Indemnifying Party shall have 30 days from the date the Claim Notice is given in accordance with the notice provisions hereof (the "Notice Period") to notify the Indemnified Party (x) whether it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses and (y) whether it desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Losses; which election to defend may be made without prejudicing the Indemnifying Party as to its liability hereunder, other than with respect to the costs of defense. Notwithstanding the foregoing, any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. (A) In the event that a Person (the “Indemnifying Party notifies the Indemnified Party”) Party within the Notice Period that it desires to assert its defend the Indemnified Party against such Losses and except as hereinafter provided, the Indemnifying Party shall have the right to indemnification from defend by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted by them to a Person (an “final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. If requested by the Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give agrees to cooperate with the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from its counsel in contesting any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent Losses that the Indemnifying Party is actually prejudiced by elects to contest, or, if appropriate and related to the failure claim in question, in making any counterclaim against the person asserting the third party Losses, or any cross-complaint against any person. No claim with respect to so notify promptly. (b) The Indemnified which the Indemnifying Party shall not settle has admitted its liability may be settled or compromise any Claim otherwise compromised without the prior written consent of the Indemnifying Party. Any party settling or compromising a claim in violation of the preceding sentence shall be solely liable for the amount of the settlement or compromise. (B) If the Indemnifying Party unless does not notify the Indemnified Party agrees in writing within 30 days after the receipt of a Claim Notice that it elects to forego any and all claims for indemnification from undertake the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claimdefense thereof, the Indemnified Party shall have the right to undertake defend at the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right expense of the Indemnifying Party to assume the defense claim with counsel of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.its choosing reasonably

Assertion of Claims. (a) In The parties shall be free to bring all differences of interpretation and disputes arising in connection with this Agreement to the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice attention of the claim giving rise thereto (a “Claim”)other at any time without prejudicing their harmonious relationship and operations hereunder, and the Indemnifying Party good offices and facilities of either party shall undertake be available at all times for the defense thereof (unless the Claim is asserted against prompt and effective adjustment of any and all such differences, either by mail, telephone or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptlypersonal meeting under friendly and courteous circumstances. (b) If a party claims ("Claiming Party") that it is entitled to indemnification under this Article, notice of such claim (the "Claim") shall be given to the party from whom the Claiming Party seeks indemnification (the "Indemnifying Party"), designating such claim with specificity. The Indemnified parties shall negotiate in good faith to determine the validity and the value of the Claim. If the parties cannot reach an agreement as to the value of the Claim, then such Claim shall be submitted to a mutually acceptable party for arbitration in accordance with the Commercial Rules of the American Arbitration Association, and the decision of such arbitrator shall be final and binding upon the parties for all arbitration rulings awarding less than One Hundred Thousand Dollars ($100,000) in damages. To the extent damages awarded pursuant to any such ruling exceed One Hundred Thousand Dollars ($100,000), such ruling shall be reviewable by a court with competent jurisdiction. The prevailing party in any action brought before an arbitrator or any court shall be entitled to recover all costs, including fees and expenses of counsel. (c) The Indemnifying Party, upon notice to the Claiming Party shall not settle or compromise any Claim without the written consent of that the Indemnifying Party unless has assumed responsibility for a Claim initiated by a third party, shall thereupon have the Indemnified Party agrees in writing right to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. Howeverdefend, if the Indemnifying Party, within a reasonable time after notice of any compromise or settle such Claim, fails in any manner in which it may determine, in its sole discretion, provided that the Claiming Party is not subject to defend any limitation to its business, damages, costs or expenses as a result of such Claimsettlement. Subject to the provisions of the foregoing sentence, the Indemnified Claiming Party shall have the right to undertake the defenseretain counsel of its own selection, compromise or settlement of such Claim on behalf of at its own expense, and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume participate in the defense of such Claim at any time prior to settlement, compromise or final determination thereofClaim. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.

Assertion of Claims. (a) All claims for indemnification by Company pursuant to Section 12.3 hereof or the Buyer pursuant to Section 12.4 hereof, or any other provision of this Agreement shall be asserted and resolved as follows: 12.6.1 Any person claiming indemnification hereunder is hereinafter referred to as the “Indemnified Party” and any person against whom such claims are asserted hereunder is hereinafter referred to as the “Indemnifying Party.” In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a Person third party, or in the event any party shall incur any losses to which it is entitled to indemnification under this Agreement, said Indemnified Party shall with reasonable promptness notify the Indemnifying Party of the Losses, specifying the nature and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the “Claim Notice”). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such Losses if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the Indemnifying Party’s ability to defend against the Losses is not prejudiced, but only to the extent such notification within such time period is practicable. The Indemnifying Party shall have 30 days from the date the Claim Notice is given in accordance with the notice provisions hereof (the “Notice Period”) to notify the Indemnified Party (i) whether it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses and (ii) whether its desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Losses; which election to defend may be made without prejudicing the Indemnifying Party as to its liability hereunder, other than with respect to the costs of defense. Notwithstanding the foregoing, any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. 12.6.2 In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to assert its defend the Indemnified Party against such Losses and except as hereinafter provided, the Indemnifying Party shall have the right to indemnification from defend by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted by them to a Person (an “final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense. If requested by the Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give agrees to cooperate with the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from its counsel in contesting any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent Losses that the Indemnifying Party is actually prejudiced by elects to contest, or, if appropriate and related to the failure claim in question, in making any counterclaim against the person asserting the third party Losses, or any cross-complaint against any person. No claim with respect to so notify promptly. (b) The Indemnified which the Indemnifying Party shall not settle has admitted its liability may be settled or compromise any Claim otherwise compromised without the prior written consent of the Indemnifying Party. Any party settling or compromising a claim in violation of the preceding sentence shall be solely liable for the amount of the settlement or compromise. 12.6.3 If the Indemnifying Party unless does not notify the Indemnified Party agrees in writing within 30 days after the receipt of a Claim Notice that it elects to forego any and all claims for indemnification from undertake the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claimdefense thereof, the Indemnified Party shall have the right to undertake defend at the defense, compromise or settlement expense of such Claim on behalf the Indemnifying Party the claim with counsel of and for the account and risk of its choosing reasonably satisfactory to the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim any claim at any time prior to settlement, compromise settlement or final determination thereof. Any such defense shall be prosecuted promptly and vigorously by the Indemnified Party. In the case of either (12.6.2) or (12.6.3), if the Indemnifying Party has not yet admitted its liability for a claim the Indemnified Party shall send a written notice to the Indemnifying Party of any proposed settlement of any claim received by the Indemnified Party. The Indemnifying Party shall have an option for 30 days following receipt of such notice to (i) admit liability for the claim if it has not already done so; and (ii) if liability has been admitted, reject, in its reasonably judgment, the proposed settlement. Failure to reject such settlement within such 30 day period shall be deemed an acceptance of such settlement. If the Indemnified Party settles any such claim over the objection of the Indemnifying Party, the Indemnified Party shall thereby waive any right to indemnify therefor, unless the Indemnifying Party has prior to the time of settlement admitted liability for such claim. 12.6.4 In the event any Indemnified Party should have a claim for Losses against any Indemnifying Party hereunder that does not involve a Loss being asserted against or sought to be collected from it by a third party (cfor example, but without limitation, a Loss resulting from a breach of a representation, warranty or covenant), the Indemnified Party shall send a Claim Notice (including an explanation, in reasonable detail, of the basis for such claim, the particular representation, warranty or covenant claimed to be breached by the Indemnifying Party, and the manner in which the amount claimed to be due was computed, together with all documents in the possession of the Indemnified Party relating to such claim for Losses) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYwith respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within 30 days from the date the Claim Notice is given that it disputes such claim for Losses, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIMthe amount of such Losses shall be conclusively deemed a liability of the Indemnifying Party hereunder.

Assertion of Claims. All claims for indemnification by any of the Seller Indemnitees or any of the Purchaser Indemnitees under Section 7.2(a) or any other provision of this Agreement or any Document shall be asserted and resolved as follows: (ai) Any person claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness and in writing notify the Indemnifying Party of the Losses, specifying the nature of and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the "Claim Notice"). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such Losses if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the Losses is not prejudiced, but only to the extent such notification within such time period is practicable. The Indemnifying Party shall have 30 days from the date the Claim Notice is given in accordance with the notice provisions hereof (the "Notice Period") to notify the Indemnified Party (x) whether it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses and (y) whether it desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Losses; which election to defend may be made without prejudicing the Indemnifying Party as to its liability hereunder, other than with respect to the costs of defense. Notwithstanding the foregoing, any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. (A) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, notifies the Indemnified Party will give within the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related Notice Period that it desires to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless defend the Indemnified Party agrees in writing to forego any against such Losses and all claims for indemnification from except as hereinafter provided, the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake defend by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted by them to a final conclusion. If the defenseIndemnified Party desires to participate in, compromise but not control, any such defense or settlement of such Claim on behalf of it may do so at its sole cost and for expense. If requested by the account Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and risk its counsel in contesting any Losses that the Indemnifying Party elects to contest, or, if appropriate and related to the claim in question, in making any counterclaim against the person asserting the third party Losses, or any cross-complaint against any person. No claim with respect to which the Indemnifying Party has admitted its liability may be settled or otherwise compromised without the prior written consent of the Indemnifying Party, subject to . Any party settling or compromising a claim in violation of the right preceding sentence shall be solely liable for the amount of the settlement or compromise. (B) If the Indemnifying Party to assume does not notify the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.Indemnified Party within 30 days after the

Assertion of Claims. All claims for indemnification by either of the Selling Parties pursuant to Section 12.12 hereof or the Buyer pursuant to Section 12.4 hereof, or any other provision of this Agreement except Section 12.3, shall be asserted and resolved as follows: (a) Any person claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness notify the Indemnifying Party of the Losses, specifying the nature and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the "Claim Notice"). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect (A) In the event that a Person (the “Indemnifying Party notifies the Indemnified Party”) Party within the Notice Period that it desires to assert its defend the Indemnified Party against such Losses and except as hereinafter provided, the Indemnifying Party shall have the right to indemnification from defend by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted by them to a Person (an “final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense. If requested by the Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give agrees to cooperate with the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from its counsel in contesting any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent Losses that the Indemnifying Party is actually prejudiced by elects to contest, or, if appropriate and related to the failure claim in question, in making any counterclaim against the person asserting the third party Losses, or any cross-complaint against any person. No claim with respect to so notify promptly. (b) The Indemnified which the Indemnifying Party shall not settle has admitted its liability may be settled or compromise any Claim otherwise compromised without the prior written consent of the Indemnifying Party. Any party settling or compromising a claim in violation of the preceding sentence shall be solely liable for the amount of the settlement or compromise. (B) If the Indemnifying Party unless does not notify the Indemnified Party agrees in writing within 30 days after the receipt of a Claim Notice that it elects to forego any and all claims for indemnification from undertake the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claimdefense thereof, the Indemnified Party shall have the right to undertake defend at the defense, compromise or settlement expense of such Claim on behalf the Indemnifying Party the claim with counsel of and for the account and risk of its choosing reasonably satisfactory to the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim any claim at any time prior to settlement, compromise settlement or final determination thereof. Any such defense shall be prosecuted promptly and vigorously by the Indemnified Party. In the case of either (A) or (B), if the Indemnifying Party has not yet admitted its liability for a claim the Indemnified Party shall send a written notice to the Indemnifying Party of any proposed settlement of any claim received by the Indemnified Party. The Indemnifying Party shall have an option for 30 days following receipt of such notice to (i) admit liability for the claim if it has not already done so and (ii) if liability has been admitted, reject, in its reasonably judgment, the proposed settlement. Failure to reject such settlement within such 30 day period shall be deemed an acceptance of such settlement. If the Indemnified Party settles any such claim over the objection of the Indemnifying Party, the Indemnified Party shall thereby waive any right to indemnify therefor, unless the Indemnifying Party has prior to the time of settlement admitted liability for such claim. (cb) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND In the event any Indemnified Party should have a claim for Losses against any Indemnifying Party hereunder that does not involve a Loss being asserted against or sought to be collected from it by a third party (Ifor example, but without limitation, a Loss resulting from a breach of a representation, warranty or covenant), the Indemnified Party shall send a Claim Notice (including an explanation, in reasonable detail, of the basis for such claim, the particular representation, warranty or covenant claimed to be breached by the Indemnifying Party, and the manner in which the amount claimed to be due was computed, together with all documents in the possession of the Indemnified Party relating to such claim for Losses) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYwith respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within 30 days from the date the Claim Notice is given that it disputes such claim for Losses, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIMthe amount of such Losses shall be conclusively deemed a liability of the Indemnifying Party hereunder.

Assertion of Claims. (a) In the event that a Person (the “"Indemnified Party”") desires to assert its right to indemnification from a Person (an “"Indemnifying Party”") required to indemnify such Indemnified Party under this Section 12Article XII, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “"Claim”"), and the Indemnifying Party shall will undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall will have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND If the Indemnifying Party has undertaken the defense of a Claim and (Ii) IF THERE IS A REASONABLE EXPECTATION THAT if there is a reasonable expectation that (Xx) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments or (Yy) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYthe Indemnified Party or Parties may have legal defenses available to it or them that are different from or additional to the defenses available to the Indemnifying Party, OR or (IIii) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTYif the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHTthe Indemnified Party shall nevertheless have the right, AT THE INDEMNIFYING PARTY’S COST AND EXPENSEat the Indemnified Party's cost and expense, TO DEFEND SUCH CLAIM.to defend such Claim. ARTICLE XIII Withdrawal Prohibited SECTION

Assertion of Claims. (a) In the event that a Person (the “"Indemnified Party”") desires to assert its right to indemnification from a Person (an “"Indemnifying Party”") required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “"Claim”"), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND If the Indemnifying Party has undertaken the defense of a Claim and (Ii) IF THERE IS A REASONABLE EXPECTATION THAT if there is a reasonable expectation that (Xx) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments or (Yy) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYthe Indemnified Party or Unitholders may have legal defenses available to it or them that are different from or additional to the defenses available to the Indemnifying Party, OR or (IIii) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTYif the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHTthe Indemnified Party shall nevertheless have the right, AT THE INDEMNIFYING PARTY’S COST AND EXPENSEat the Indemnifying Party's cost and expense, TO DEFEND SUCH CLAIMto defend such Claim.

Assertion of Claims. (a) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party EXECUTION VERSION to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.

Assertion of Claims. (a) In the event that Buyers or Sellers desires ------------------- to make a Person claim under this Article 5 (an "Indemnification Claim"), the party to be indemnified (the “"Indemnified Party”") desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the other party (the "Indemnifying Party Party") prompt notice of any such Indemnification Claim and, in the claim giving rise thereto (a “Claim”)event such Indemnification Claim involves any suit, and action or other proceeding, pending or threatened, the Indemnifying Party shall will undertake the defense thereof (unless by representatives chosen by it which are reasonably satisfactory to the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Indemnified Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party such party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the such failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claimgive notice. However, if If the Indemnifying Party, within a reasonable time after notice of any such Indemnification Claim, fails to defend such Indemnification Claim, the Indemnified Party shall will have the right to undertake the defense, compromise or settlement of such Indemnification Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Indemnification Claim at any time prior to settlement, compromise or final determination thereof. The Indemnified Party shall, at the request and expense of the Indemnifying Party, provide reasonable assistance in the defense of any such Indemnification Claim. If the Indemnifying Party has undertaken defense of an Indemnification Claim and if there is a reasonable probability that (i) an Indemnification Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments or (ii) the Indemnified Party or parties may have legal defenses available to it which are different from or additional to the defenses available to the Indemnifying Party, the Indemnified Party shall have the right, at the Indemnifying Party's expense, to jointly control the defense, compromise or settlement of such Indemnification Claim. In all events an Indemnified Party shall have the right to participate in its defense at its own expense. Notwithstanding the foregoing, no Indemnifying Party shall be liable for any compromise or settlement of any action or proceeding effected without its written consent (which shall not be unreasonably withheld). The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise any Indemnification Claim or consent to the entry of any judgment with respect to the Indemnified Party which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such Indemnification Claim. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.

Assertion of Claims. All claims for indemnification by either of the Acquired Parties pursuant to Section 12.14 hereof or ProxyMed pursuant to Section 12.4 hereof, or any other provision of the Agreement except Section 12.3, shall be asserted and resolved as follows: (a) Any person claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness notify the Indemnifying Party of the Losses, specifying the nature and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the "Claim Notice"). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such Losses if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of the Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the Losses is not prejudiced, but only to the extent such notification within such time period is practicable. The Indemnifying Party shall have thirty (30) days from the date the Claim Notice is given in accordance with the notice provisions hereof (the "Notice Period") to notify the Indemnified Party (x) whether it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses; and (y) whether it desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Losses; which election to defend may be made without prejudicing the Indemnifying Party as to its liability hereunder, other than with respect to the costs of defense. Notwithstanding the foregoing, the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. (A) In the event that a Person (the “Indemnifying Party notifies the Indemnified Party”) Party within the Notice Period that it desires to assert its defend the Indemnified Party against such Losses and except as hereinafter provided, the Indemnifying Party shall have the right to indemnification from defend by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted by them to a Person (an “final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense. If requested by the Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give agrees to cooperate with the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from its counsel in contesting any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent Losses that the Indemnifying Party is actually prejudiced by elects to contest, or, if appropriate and related to the failure claim in question, in making any counterclaim against the person asserting the third party Losses, or any cross-complaint against any person. No claim with respect to so notify promptly. (b) The Indemnified which the Indemnifying Party shall not settle has admitted its liability may be settled or compromise any Claim otherwise compromised without the prior written consent of the Indemnified Party. Any party settling or compromising a claim in violation of the preceding sentence shall be solely liable for the amount of the settlement or compromise. (B) If the Indemnifying Party unless does not notify the Indemnified Party agrees in writing within thirty (30) days after the receipt of a Claim Notice that it elects to forego any and all claims for indemnification from undertake the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claimdefense thereof, the Indemnified Party shall have the right to undertake defend at the defense, compromise or settlement expense of such Claim on behalf the Indemnifying Party the claim with counsel of and for the account and risk of its choosing reasonably satisfactory to the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim any claim at any time prior to settlement, compromise settlement or final determination thereof. Any such defense shall be prosecuted promptly and vigorously by the Indemnified Party. In the case of either (A) or (B), if the Indemnifying Party has not admitted its liability for a claim, the Indemnified Party shall send a written notice to the Indemnifying Party of any proposed settlement of any claim received by the Indemnified Party. The Indemnifying Party shall have an option for thirty (30) days following receipt of such notice to (i) admit liability for the claim if it has not already done so and (ii) if liability has been admitted, reject, in its reasonably judgment, the proposed settlement. Failure to reject such settlement within such 30-day period shall be deemed an acceptance of such settlement. If the Indemnified Party settles any such claim over the objection of the Indemnifying Party, the Indemnified Party shall thereby waive any right to indemnify therefor, unless the Indemnifying Party has prior to the time of settlement admitted liability for such claim. Notwithstanding any provisions hereof to the contrary, the Indemnifying Party may defend any claim in the manner described herein under a reservation of rights as to liability for such claim. (cb) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND In the event any Indemnified Party should have a claim for Losses against any Indemnifying Party hereunder that does not involve a Loss being asserted against or sought to be collected from it by a third party (Ifor example, but without limitation, a Loss resulting from a breach of a representation, warranty or covenant), the Indemnified Party shall send a Claim Notice (including an explanation, in reasonable detail, of the basis for such claim, the particular representation, warranty or covenant claimed to be breached by the Indemnifying Party, and the manner in which the amount claimed to be due was computed, together with all documents in the possession of the Indemnified Party relating to such claim for Losses) IF THERE IS A REASONABLE EXPECTATION THAT with respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (X30) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYdays from the date the Claim Notice is given that it disputes such claim for Losses, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIMthe amount of such Losses shall be conclusively deemed a liability of the Indemnifying Party hereunder.

Assertion of Claims. No claim shall be brought under Article VIII hereof unless the Indemnified Persons, or any of them, at any time after the Closing Date but prior to the applicable Survival Date, give the Indemnifying Persons (a) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt written notice of the existence of any such claim, specifying the nature and basis of such claim giving rise thereto (a “Claim”), and the Indemnifying amount thereof, to the extent known, or (b) written notice pursuant to Section 8.7 of any Third Party shall undertake Claim, the defense thereof (unless existence of which might give rise to such a claim but the Claim is asserted against or related failure so to or results from any action or failure provide such notice to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall Persons will not relieve the Indemnifying Party of its obligations hereunder, except Persons from any liability which they may have to the Indemnified Persons under this Agreement or otherwise (unless and only to the extent that such failure results in the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle loss or compromise of any Claim without the written consent rights or defenses of the Indemnifying Party unless Persons and they were not otherwise aware of such action or claim). If the Indemnifying Persons do not object within ten days of such written notice, then the Indemnified Party agrees in writing Persons shall give written notice setting forth the amount of Losses to forego any and all claims for indemnification from be set-off against the Indemnifying Party with respect to such Claim. HoweverStock Consideration and, if the Stock Consideration is insufficient or unavailable to satisfy such Losses, the Losses to be claimed against the Indemnifying PartyPersons in accordance with Section 8.5(b), which written notice the parties hereto hereby acknowledge to be sufficient to authorize such set-off against the Stock Consideration and/or to be claimed against the Indemnifying Persons in accordance with Section 8.5(b), as directed by the Indemnified Persons. If the Indemnifying Persons do object on a timely basis and the parties are unable to agree to the amount of Losses to be set-off and/or claimed within a reasonable time after 30 days from the date of written notice of any such Claimthe objection, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and either party may institute court proceedings in accordance with Section 9.10 hereof for the account and risk a determination of the Indemnifying Party, subject Losses to be set-off against the right of Stock Consideration and/or to be claimed against the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereofPersons in accordance with Section 8.5(b) hereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.

Assertion of Claims. All claims for indemnification by any of the Tanklage Indemnitees or any of ASF Indemnitees under this Section 11.2 shall be asserted and resolved as follows: (ai) Any person claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness notify the Indemnifying Party of the Losses, specifying the nature of and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the "Claim Notice"). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such Losses if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the Losses is not prejudiced, but only to the extent such notification within such time period is practicable. The Indemnifying Party shall have 30 days from the date the Claim Notice is given in accordance with the notice provisions hereof (the "Notice Period") to notify the Indemnified Party (x) whether it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses and (y) whether it desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Losses; which election to defend may be made without prejudicing the Indemnifying Party as to its liability hereunder, other than with respect to the costs of defense. Notwithstanding the foregoing, any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. (A) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, notifies the Indemnified Party will give within the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related Notice Period that it desires to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless defend the Indemnified Party agrees in writing to forego any against such Losses and all claims for indemnification from except as hereinafter provided, the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake defend by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted by them to a final conclusion. If the defenseIndemnified Party desires to participate in, compromise but not control, any such defense or settlement of such Claim on behalf of it may do so at its sole cost and for the account and risk of expense. If requested by the Indemnifying Party, subject the Indemnified Party agrees to the right of cooperate with the Indemnifying Party and its counsel in contesting any Losses that the Indemnifying Party elects to assume the defense of such Claim at any time prior to settlementcontest, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYor, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.if

Assertion of Claims. (a) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND If the Indemnifying Party has undertaken the defense of a Claim and (Ii) IF THERE IS A REASONABLE EXPECTATION THAT if there is a reasonable expectation that (Xx) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments or (Yy) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYthe Indemnified Party or Unitholders may have legal defenses available to it or them that are different from or additional to the defenses available to the Indemnifying Party, OR or (IIii) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTYif the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHTthe Indemnified Party shall nevertheless have the right, AT THE INDEMNIFYING PARTY’S COST AND EXPENSEat the Indemnifying Party’s cost and expense, TO DEFEND SUCH CLAIMto defend such Claim.

Assertion of Claims. (a) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party Xxxxx unless the Indemnified Party Xxxxx agrees in writing to to· forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.

Assertion of Claims. All claims for indemnification by any of the Selling Parties pursuant to Section 12.14 hereof or the Buyer pursuant to Section 12.4 hereof, or any other provision of this Agreement, including Article 17, shall be asserted and resolved as follows: (a) Any person claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness notify the Indemnifying Party of the Losses, specifying the nature and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the "Claim Notice"). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such Losses if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the Losses is not prejudiced, but only to the extent such notification within such time period is practicable. The Indemnifying Party shall have 30 days from the date the Claim Notice is given in accordance with the notice provisions hereof (the "Notice Period") to notify the Indemnified Party (x) whether it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses, and (y) whether its desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Losses; which election to defend may be made without prejudicing the Indemnifying Party as to its liability hereunder, other than with respect to the costs of defense. Notwithstanding the foregoing, Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. (A) In the event that a Person (the “Indemnifying Party notifies the Indemnified Party”) Party within the Notice Period that it desires to assert its defend the Indemnified Party against such Losses and except as hereinafter provided, the Indemnifying Party shall have the right to indemnification from defend by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted by them to a Person (an “final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense. If requested by the Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give agrees to cooperate with the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from its counsel in contesting any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent Losses that the Indemnifying Party is actually prejudiced by elects to contest, or, if appropriate and related to the failure claim in question, in making any counterclaim against the person asserting the third party Losses, or any cross-complaint against any person. No claim with respect to so notify promptly. (b) The Indemnified which the Indemnifying Party shall not settle has admitted its liability may be settled or compromise any Claim otherwise compromised without the prior written consent of the Indemnified Party. Any party settling or compromising a claim in violation of the preceding sentence shall be solely liable for the amount of the settlement or compromise. (B) If the Indemnifying Party unless does not notify the Indemnified Party agrees in writing within 30 days after the receipt of a Claim Notice that it elects to forego any and all claims for indemnification from undertake the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claimdefense thereof, the Indemnified Party shall have the right to undertake defend at the defense, compromise or settlement expense of such Claim on behalf the Indemnifying Party the claim with counsel of and for the account and risk of its choosing reasonably satisfactory to the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim any claim at any time prior to settlement, compromise settlement or final determination thereof. Any such defense shall be prosecuted promptly and vigorously by the Indemnified Party. In the case of either (A) or (B), if the Indemnifying Party has not admitted its liability for a claim, the Indemnified Party shall send a written notice to the Indemnifying Party of any proposed settlement of any claim received by the Indemnified Party. The Indemnifying Party shall have an option for 30 days following receipt of such notice to (i) admit liability for the claim if it has not already done so and (ii) if liability has been admitted, reject, in its reasonably judgment, the proposed settlement. Failure to reject such settlement within such 30 day period shall be deemed an acceptance of such settlement. If the Indemnified Party settles any such claim over the objection of the Indemnifying Party, the Indemnified Party shall thereby waive any right to indemnify therefor, unless the Indemnifying Party has prior to the time of settlement admitted liability for such claim. Notwithstanding any provisions hereof to the contrary, the Indemnifying Party may defend any claim in the manner described herein under a reservation of rights as to liability for such claim. (cb) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND In the event any Indemnified Party should have a claim for Losses against any Indemnifying Party hereunder that does not involve a Loss being asserted against or sought to be collected from it by a third party (Ifor example, but without limitation, a Loss resulting from a breach of a representation, warranty or covenant), the Indemnified Party shall send a Claim Notice (including an explanation, in reasonable detail, of the basis for such claim, the particular representation, warranty or covenant claimed to be breached by the Indemnifying Party, and the manner in which the amount claimed to be due was computed, together with all documents in the possession of the Indemnified Party relating to such claim for Losses) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYwith respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within 30 days from the date the Claim Notice is given that it disputes such claim for Losses, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIMthe amount of such Losses shall be conclusively deemed a liability of the Indemnifying Party hereunder.

Assertion of Claims. (a) In the event that a Person (the “"Indemnified Party”") desires to assert its right to indemnification from a Person (an “"Indemnifying Party”") required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “"Claim”"), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party Xxxxx unless the Indemnified Party Xxxxx agrees in writing to to· forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party Pa1ty shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.

Assertion of Claims. (a) In the event that a Person (the “Indemnified Party”) desires to assert its right to indemnification from a Person (an “Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. (b) The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.

Assertion of Claims. All claims for indemnification by either of the Selling Parties pursuant to Section 12.13 hereof or the Buyer pursuant to Section 12.4 hereof, or any other provision of this Agreement except Section 12.3, shall be asserted and resolved as follows: (a) Any person claiming indemnification hereunder is hereinafter referred to as the "Indemnified Party" and any person against whom such claims are asserted hereunder is hereinafter referred to as the "Indemnifying Party." In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness notify the Indemnifying Party of the Losses, specifying the nature and specific basis for such Losses and the indemnity claim and the amount or the estimated amount thereof to the extent then feasible and enclosing a copy of all papers (if any) served with respect to the claim (the "Claim Notice"). The Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to any such Losses if the Indemnified Party fails to notify the Indemnifying Party thereof in accordance with the provisions of this Agreement in reasonably sufficient time so that the Indemnifying Party's ability to defend against the Losses is not prejudiced, but only to the extent such notification within such time period is practicable. The Indemnifying Party shall have 30 days from the date the Claim Notice is given in accordance with the notice provisions hereof (the "Notice Period") to notify the Indemnified Party (x) whether it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses and (y) whether its desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Losses; which election to defend may be made without prejudicing the Indemnifying Party as to its liability hereunder, other than with respect to the costs of defense. Notwithstanding the foregoing, any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and that is not prejudicial to the Indemnifying Party. (A) In the event that a Person (the “Indemnifying Party notifies the Indemnified Party”) Party within the Notice Period that it desires to assert its defend the Indemnified Party against such Losses and except as hereinafter provided, the Indemnifying Party shall have the right to indemnification from defend by all appropriate proceedings, and with counsel of its own choosing, which proceedings shall be promptly settled or prosecuted by them to a Person (an “final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its sole cost and expense. If requested by the Indemnifying Party”) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give agrees to cooperate with the Indemnifying Party prompt notice of the claim giving rise thereto (a “Claim”), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from its counsel in contesting any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent Losses that the Indemnifying Party is actually prejudiced by elects to contest, or, if appropriate and related to the failure claim in question, in making any counterclaim against the person asserting the third party Losses, or any cross-complaint against any person. No claim with respect to so notify promptly. (b) The Indemnified which the Indemnifying Party shall not settle has admitted its liability may be settled or compromise any Claim otherwise compromised without the prior written consent of the Indemnifying Party. Any party settling or compromising a claim in violation of the preceding sentence shall be solely liable for the amount of the settlement or compromise. (B) If the Indemnifying Party unless does not notify the Indemnified Party agrees in writing within 30 days after the receipt of a Claim Notice that it elects to forego any and all claims for indemnification from undertake the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claimdefense thereof, the Indemnified Party shall have the right to undertake defend at the defense, compromise or settlement expense of such Claim on behalf the Indemnifying Party the claim with counsel of and for the account and risk of its choosing reasonably satisfactory to the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim any claim at any time prior to settlement, compromise settlement or final determination thereof. Any such defense shall be prosecuted promptly and vigorously by the Indemnified Party. In the case of either (A) or (B), if the Indemnifying Party has not yet admitted its liability for a claim the Indemnified Party shall send a written notice to the Indemnifying Party of any proposed settlement of any claim received by the Indemnified Party. The Indemnifying Party shall have an option for 30 days following receipt of such notice to (i) admit liability for the claim if it has not already done so and (ii) if liability has been admitted, reject, in its reasonably judgment, the proposed settlement. Failure to reject such settlement within such 30 day period shall be deemed an acceptance of such settlement. If the Indemnified Party settles any such claim over the objection of the Indemnifying Party, the Indemnified Party shall thereby waive any right to indemnify therefor, unless the Indemnifying Party has prior to the time of settlement admitted liability for such claim. (cb) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND In the event any Indemnified Party should have a claim for Losses against any Indemnifying Party hereunder that does not involve a Loss being asserted against or sought to be collected from it by a third party (Ifor example, but without limitation, a Loss resulting from a breach of a representation, warranty or covenant), the Indemnified Party shall send a Claim Notice (including an explanation, in reasonable detail, of the basis for such claim, the particular representation, warranty or covenant claimed to be breached by the Indemnifying Party, and the manner in which the amount claimed to be due was computed, together with all documents in the possession of the Indemnified Party relating to such claim for Losses) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTYwith respect to such claim to the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within 30 days from the date the Claim Notice is given that it disputes such claim for Losses, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIMthe amount of such Losses shall be conclusively deemed a liability of the Indemnifying Party hereunder.

Assertion of Claims. (a) In the event that Any Party making a Person (the claim under this Article 16 is referred to as an “Indemnified Party”) desires ” and each Party against whom such claims are asserted under this Article 16 is referred to assert its right to indemnification from a Person (as an “Indemnifying Party”. (b) required to indemnify such An Indemnified Party under this Section 12, shall promptly give each Indemnifying Party written notice of any matter which the Indemnified Party will has determined has given or could give rise to a right of indemnification under this Article 16 stating the Indemnifying Party prompt notice amount of the claim giving rise thereto (a “Claim”)Loss, if known, and the Indemnifying method of computation thereof, all with reasonable particularity; provided, however, that the failure of an Indemnified Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder give timely notice shall not relieve affect the Indemnifying Party rights of its obligations hereunder, such party to indemnification hereunder except to the extent that an Indemnifying Party demonstrates actual damage caused by such failure. (c) The obligations and liabilities of the Indemnifying Party is actually prejudiced under this Article 16 with respect to Losses arising from claims of any third party (including claims by any governmental agency) that are subject to the indemnification provided for in this Article 16 (“Third Party Claims”) shall be governed by and be contingent upon the additional terms and conditions set forth in this subsection (c). If an Indemnified Party shall receive notice of any Third Party Claim, the Indemnified Party shall give each Indemnifying Party prompt written notice thereof and shall permit each Indemnifying Party, at its option, to participate in the defense of such Third Party Claim by the failure counsel of their own choosing and at their own expense, such right to participate to include a right to receive from the Indemnified Party all relevant documentation and a right to interview all relevant witnesses (subject to the limitations contained in the next sentence). If any Third Party Claim against an Indemnified Party is solely for money damages and will have no continuing effect in any material respect on the Indemnified Party and the amount claimed by the third party in the Third Party Claim is not more than the limit on such Indemnifying Party’s indemnity obligations contained in Section 16.5, then if an Indemnifying Party acknowledges in writing the Indemnifying Party’s obligation to indemnify the Indemnified Party under this Article 16 against any such Losses that may result from its portion of the exposure of such Third Party Claim, then the Indemnifying Party shall be entitled, at its option, to assume and control the defense of such Third Party Claim at the expense and through the counsel of the Indemnifying Party’s choice, reasonably satisfactory to the Indemnified Party, if the Indemnifying Party gives timely written notice of their intention to do so to the Indemnified Party. The Indemnifying Party shall then permit such Indemnified Party, at its option, to participate in the defense of such Third Party Claim by the counsel of its own choosing and at its own expense. However, if such Indemnifying Party elects not to defend against or is not entitled to so defend, pursuant to the third sentence of this subsection (c), such Third Party Claim, then such Indemnifying Party shall promptly so notify promptly. (b) the Indemnified Party and such Indemnified Party shall thereupon have the right to assume and control the defense of its portion of the exposure of such Third Party Claim at the expense of such Indemnifying Party and through the counsel of such Indemnified Party’s choice. In respect of any Third Party Claim, regardless of which Party is conducting a defense thereof, the Indemnified Party shall cooperate with such Indemnifying Party in such defense and make available to such Indemnifying Party, at such Indemnifying Party’s expense, all pertinent records, materials and information in its possession or under its control relating thereto as is reasonably requested by such Indemnifying Party. Notwithstanding the foregoing, with respect to any Third Party Claim, the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such action, suit, claim, tax audit, proceeding, demand, assessment or enforcement action, and any appeal arising therefrom. The Indemnified Party shall may not settle or compromise any Third Party Claim without the written consent of the each Indemnifying Party, which consent shall not be unreasonably withheld or delayed. (d) Each Indemnifying Party unless the Indemnified Party agrees in writing shall be subrogated to forego any and all defenses, claims for indemnification from or setoffs which an Indemnified Party asserted or could have asserted against the Indemnifying third party making a Third Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the The Indemnified Party shall have execute and deliver to each Indemnifying Party such documents as may be necessary to establish by way of subrogation the right to undertake the defense, compromise or settlement of such Claim on behalf of ability and for the account and risk of the Indemnifying Party, subject to the right of the each Indemnifying Party to assume the defense of assert such Claim at defenses, claims or setoffs against any time prior to settlement, compromise or final determination thereofthird party making a Third Party Claim. (c) IF THE INDEMNIFYING PARTY HAS UNDERTAKEN THE DEFENSE OF A CLAIM AND (I) IF THERE IS A REASONABLE EXPECTATION THAT (X) A CLAIM MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNIFIED PARTY OTHER THAN AS A RESULT OF MONEY DAMAGES OR OTHER MONEY PAYMENTS OR (Y) THE INDEMNIFIED PARTY OR MEMBERS MAY HAVE LEGAL DEFENSES AVAILABLE TO IT OR THEM THAT ARE DIFFERENT FROM OR ADDITIONAL TO THE DEFENSES AVAILABLE TO THE INDEMNIFYING PARTY, OR (II) IF THE INDEMNIFYING PARTY SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY, THE INDEMNIFIED PARTY SHALL NEVERTHELESS HAVE THE RIGHT, AT THE INDEMNIFYING PARTY’S COST AND EXPENSE, TO DEFEND SUCH CLAIM.