Common use of Certain Procedures Clause in Contracts

Certain Procedures. If any Claim shall be brought or asserted against Indemnitee in respect of which indemnification may be sought hereunder, Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Company, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding on behalf of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise shall not be unreasonably withheld by any of the parties hereto and shall be deemed to have been given by the Company if Indemnitee provides the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee shall not be required to consent to any settlement or compromise that does not include a complete, full and absolute release of the Indemnitee, in form and substance satisfactory to the Indemnitee in his or her sole discretion, from any liability under such claim.

Certain Procedures. If any Claim shall be brought or asserted against Indemnitee in respect The holder of which indemnification may be sought hereunderthis Note that is entitled to receive shares of Common Stock issuable upon conversion of this Note pursuant to Section 6(a), Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (ib) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceedingc), or (iii) the named parties to any such action or proceeding include both Indemnitee and Companyas applicable, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Company, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding on behalf of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise shall not be unreasonably withheld by any of the parties hereto and shall be deemed to have been given converted this Note as of (i) in the event of a conversion pursuant to Section 6(a), the time of the closing and funding of the Qualified Equity Offering during the QEO Period, (ii) in the event of a conversion pursuant to Section 6(b), June 30, 2010, and (iii) in the event of a conversion pursuant to Section 6(c), upon the giving of the holder’s notice of conversion pursuant to Section 6(c) (as applicable, the “Conversion Date”). As of the Conversion Date, the Post-QEO Converted Amount, the Maturity Date Converted Amount or the COC Conversion Amount, as applicable, shall be converted automatically without any further action by the Company if Indemnitee provides holder and whether this Note is surrendered to Debtor at the Company with a written notice setting forth QEO Conversion Price or the material terms of such settlement or compromise and Issuance Date Conversion Price (as the Company does not object thereto in a written notice delivered same may be adjusted pursuant to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoingSection 7 hereof), Indemnitee as applicable; provided, however, that Debtor shall not be required obligated to consent issue certificates evidencing the shares of Common Stock issuable upon such conversion until this Note is either delivered to Debtor, as hereinafter provided, or the holder of this Note notifies Debtor, as hereinafter provided, that such Note have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to Debtor to indemnify Debtor from any settlement loss incurred by it in connection therewith. Thereupon, there shall be issued and delivered to such holder, promptly at such office and in the name of such holder as shown hereon, a certificate or compromise that does certificates for the number of shares of Common Stock into which the Note surrendered was convertible as of such Conversion Date, and with respect to partial conversions, a new note in the form of this Note for the remaining principal balance outstanding, together with accrued and unpaid interest, not include so converted. Any person whose name the certificate for shares of Common Stock is to be issued shall be considered to have become a complete, full and absolute release holder of record of such shares of Common Stock as of the Indemnitee, in form and substance satisfactory to closing of business on the Indemnitee in his or her sole discretion, from any liability under such claimapplicable Conversion Date.

Certain Procedures. If (a) A Quest Diagnostics Indemnified Party or SmithKline Xxxxxxx Indemnified Party (an "INDEMNIFIED PARTY") shall give the indemnifying party written notice of any Claim shall be brought matter which such Indemnified Party has determined has given or asserted against Indemnitee could give rise to a right of indemnification under this Agreement within 30 days of such determination, stating the indemnifiable amount, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification may be sought hereunder, Indemnitee shall promptly is claimed or arises. The failure by any Indemnified Party so to notify the Company indemnifying party shall not relieve the indemnifying party from any liability which it may have to such Indemnified Party under this Article XI, except to the extent that the indemnifying party demonstrates that it has been materially prejudiced by such failure (except that the indemnifying party shall not be liable for any expense incurred during the period, if any, from the date that is thirty days after such determination to the date the Indemnified Party provides notice hereunder). If the indemnifying party does not notify the Indemnified Party within 30 days following its receipt of such notice that the indemnifying party disputes its liability to the Indemnified Party under this Article XI, such claim specified by the Indemnified Party in writing, such notice shall be conclusively deemed a liability of the indemnifying party under this Article XI and the Company indemnifying party shall have pay the right amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the indemnifying party has timely disputed its liability with respect to such claim, as provided above, the indemnifying party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction pursuant to Section 12.16. (b) The obligations and liabilities of the indemnifying party under this Article XI with respect to claims of any third party that are subject to the indemnification provided for in this Article XI ("THIRD PARTY CLAIMS") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, such Indemnified Party shall give the indemnifying party written notice of such Third Party Claim within 30 days of the receipt by such Indemnified Party of such notice and shall deliver copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim during such 30-day time period; PROVIDED, HOWEVER, that the failure to provide such notice shall not release the indemnifying party from any of its obligations under this Article XI, except to the extent that the indemnifying party demonstrates that it has been materially prejudiced by such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period, if any, from the date that is thirty days after receipt by the Indemnified Party of such notice to the date the Indemnified Party provides notice hereunder). If an indemnifying party acknowledges in writing its obligation to indemnify an Indemnified Party hereunder against any Losses or other amounts indemnified against that may result from such Third Party Claim, then the indemnifying party shall be entitled to assume and control the defense thereof, including the employment of counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such Third Party Claim at its expense and through counsel shall be at of its choice; PROVIDED that such counsel is not reasonably objected to by the expense of Indemnitee unless (i) Indemnified Party. Should the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly indemnifying party so elect to assume the defense of such action or proceeding and employ counsel reasonably satisfactory a Third Party Claim, the indemnifying party shall not be liable to Indemnitee the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. In the event an indemnifying party exercises the right to undertake any such action defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the indemnifying party in such defense and the prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or proceedingnot the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the indemnifying party's prior written consent (iii) which consent in a case where the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Company, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company indemnifying party shall not have the right to assume assumed the defense of such action or proceeding on behalf of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Third Party Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise shall not be unreasonably withheld withheld). If the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the indemnifying party may recommend and which by any its terms obligates the indemnifying party to pay the full amount of the parties hereto and shall be deemed to have been given by liability in connection with such Third Party Claim, which releases the Company if Indemnitee provides the Company indemnifying party completely in connection with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee shall not be required to consent to any settlement or compromise that does not include a complete, full and absolute release of the Indemnitee, in form and substance satisfactory to the Indemnitee in his or her sole discretion, from any liability under such claimThird Party Claim.

Certain Procedures. If (a) A Buyer Indemnified Party or Seller Indemnified Party (an "Indemnified Party") shall give the indemnifying party written notice of any Claim shall be brought matter which such Indemnified Party has determined has given or asserted against Indemnitee could give rise to a right of indemnification under this Agreement (including Section 11.06), within 30 days of such determination, stating the indemnifiable amount, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification may be sought hereunder, Indemnitee shall promptly is claimed or arises. The failure by any Indemnified Party so to notify the Company indemnifying party shall not relieve the indemnifying party from any liability which it may have to such Indemnified Party under Article XI, except to the extent that the indemnifying party demonstrates that it has been materially prejudiced by such failure (except that the indemnifying party shall not be liable for any expense incurred during the period, if any, from the date that is thirty days after such determination to the date the Indemnified Party provides notice hereunder). If the indemnifying party does not notify the Indemnified Party within 30 days following its receipt of such notice that the indemnifying party disputes its liability to the Indemnified Party under Article XI, such claim specified by the Indemnified Party in writing, such notice shall be conclusively deemed a liability of the indemnifying party under Article XI and the Company indemnifying party shall have pay the right amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the indemnifying party has timely disputed its liability with respect to such claim, as provided above, the indemnifying party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction pursuant to Section 13.11. (b) The obligations and liabilities of the indemnifying party under this Article XI with respect to claims of any third party that are subject to the indemnification provided for in this Article XI ("Third Party Claims") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, such Indemnified Party shall give the indemnifying party written notice of such Third Party Claim within 30 days of the receipt by such Indemnified Party of such notice and shall deliver copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim during such 30-day time period; provided, however, that the failure to provide such notice shall not release the indemnifying party from any of its obligations under this Article XI, except to the extent that the indemnifying party demonstrates that it has been materially prejudiced by such failure (except that the indemnifying party shall not be liable for any expenses incurred during the period, if any, from the date that is thirty days after receipt by the Indemnified Party of such notice to the date the Indemnified Party provides notice hereunder). If an indemnifying party acknowledges in writing its obligation to indemnify an Indemnified Party hereunder against any Losses or other amounts indemnified against that may result from such Third Party Claim, then the indemnifying party shall be entitled to assume and control the defense thereof, including the employment of counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such Third Party Claim at its expense and through counsel shall be at of its choice; provided that such counsel is not reasonably objected to by the expense of Indemnitee unless (i) Indemnified Party. Should the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly indemnifying party so elect to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceedinga Third Party Claim, or (iii) the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may indemnifying party shall not be one or more legal defenses available to him which are different from or additional to those available liable to the Company, Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in which case, if Indemnitee notifies connection with the Company in writing that he elects to employ separate counsel at defense thereof. In the expense of the Company, the Company shall not have event an indemnifying party exercises the right to assume undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the indemnifying party in such defense and the prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such action or proceeding on behalf of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Third Party Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the indemnifying party's prior written consent of the other party hereto, provided that (which consent to such settlement or compromise shall not be unreasonably withheld withheld). If the indemnifying party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the indemnifying party may recommend and which by any its terms obligates the indemnifying party to pay the full amount of the parties hereto and shall be deemed to have been given by liability in connection with such Third Party Claim, which releases the Company if Indemnitee provides the Company indemnifying party completely in connection with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee shall not be required to consent to any settlement or compromise that does not include a complete, full and absolute release of the Indemnitee, in form and substance satisfactory to the Indemnitee in his or her sole discretion, from any liability under such claimThird Party Claim.

Certain Procedures. If any Claim shall be brought or asserted against Indemnitee in respect The holder of which indemnification may be sought hereunder, Indemnitee shall promptly notify the Company in writing, and the Company shall have the right this Note that is entitled to assume the defense thereof, including the employment receive shares of counsel reasonably satisfactory Common Stock issuable upon conversion of this Note pursuant to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (iSection 6(a) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceedingb), or (iii) the named parties to any such action or proceeding include both Indemnitee and Companyas applicable, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Company, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding on behalf of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise shall not be unreasonably withheld by any of the parties hereto and shall be deemed to have been given converted this Note upon the giving of the holder’s notice of conversion pursuant to Section 6(a) or (b) (as applicable, the “Conversion Date”). As of the Conversion Date, the Voluntary Conversion Amount or the COC Conversion Amount, as applicable, shall be converted automatically without any further action by the Company if Indemnitee provides holder and whether this Note is surrendered to Debtor at the Company with a written notice setting forth QEO Conversion Price or the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered Issuance Date Conversion Price (as each may be adjusted pursuant to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoingSection 7 hereof), Indemnitee as applicable; provided, however, that Debtor shall not be required obligated to consent issue certificates evidencing the shares of Common Stock issuable upon such conversion until this Note is either delivered to Debtor, as hereinafter provided, or the holder of this Note notifies Debtor, as hereinafter provided, that such Note have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to Debtor to indemnify Debtor from any settlement loss incurred by it in connection therewith. Thereupon, there shall be issued and delivered to such holder, promptly at such office and in the name of such holder as shown hereon, a certificate or compromise that does certificates for the number of shares of Common Stock into which the Note surrendered was convertible as of such Conversion Date, and with respect to partial conversions, a note in the form of this Note for the remaining principal balance outstanding, together with accrued and unpaid interest, not include so converted. Any person whose name the certificate for shares of Common Stock is to be issued shall be considered to have become a complete, full and absolute release holder of record of such shares of Common Stock as of the Indemnitee, in form and substance satisfactory to closing of business on the Indemnitee in his or her sole discretion, from any liability under such claimapplicable Conversion Date.

Certain Procedures. If any Promptly after receipt by an Indemnified Person of notice of the commencement of a Claim shall (a “Proceeding”), such Indemnified Person will, if a claim is to be brought or asserted made hereunder against Indemnitee the Indemnifying Party in respect of which indemnification may be sought hereunderthereof, Indemnitee shall promptly (and in any event within ten Business Days) notify the Company Indemnifying Party in writingwriting of the commencement thereof; provided that (i) the omission so to notify the Indemnifying Party will not relieve it from any liability that it may have hereunder except to the extent it has been materially prejudiced by such failure and (ii) the omission so to notify the Indemnifying Party will not relieve it from any liability that it may have to an Indemnified Person otherwise than on account of this Section 8. In case any such Proceedings are brought against any Indemnified Person and it notifies the Indemnifying Party of the commencement thereof, and the Company shall have Indemnifying Party will be entitled to participate therein, and, to the right extent that it may elect by written notice delivered to such Indemnified Person, to assume the defense thereof, including the employment of with counsel reasonably satisfactory to Indemnitee and such Indemnified Person, provided that if the payment of all expenses. Indemnitee shall have the right to employ separate counsel defendants in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding Proceedings include both Indemnitee such Indemnified Person and Company, the Indemnifying Party and Indemnitee has been advised by counsel such Indemnified Person shall have reasonably concluded that there may be one or more legal defenses available to him which it that are different from or additional to those available to the CompanyIndemnifying Party, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company such Indemnified Person shall not have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such Proceedings on behalf of such Indemnified Person. Upon receipt of notice from the Indemnifying Party to such Indemnified Person of its election so to assume the defense of such action or proceeding on behalf Proceedings and approval by such Indemnified Person of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither counsel, the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise Indemnifying Party shall not be unreasonably withheld liable to such Indemnified Person for expenses incurred by any such Indemnified Person in connection with the defense thereof (other than reasonable costs of investigation) unless (i) such Indemnified Person shall have employed separate counsel in connection with the parties hereto and shall be deemed to have been given by assertion of legal defenses in accordance with the Company if Indemnitee provides preceding sentence (it being understood, however, that the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee Indemnifying Party shall not be required liable for the expenses of more than one separate counsel in addition to consent local counsel, approved by the Required Backstop Purchasers, representing the Indemnified Persons who are parties to any settlement or compromise that does such Proceedings), (ii) the Indemnifying Party shall not include have employed counsel reasonably satisfactory to such Indemnified Person to represent such Indemnified Person within a complete, full and absolute release reasonable time after notice of commencement of the Indemnitee, Proceedings or (iii) the Indemnifying Party shall have authorized in form and substance satisfactory to writing the Indemnitee in his or her sole discretion, from any liability under employment of counsel for such claimIndemnified Person.

Certain Procedures. If (a) After receipt by an Indemnified Party of notice of any Claim shall be brought complaint or asserted against Indemnitee in the commencement of any action or proceeding with respect of to which indemnification may be is being sought hereunder, Indemnitee shall such person will promptly notify the Company Indemnifying Party in writingwriting of such complaint or of the commencement of such action or proceeding, and but failure so to notify the Company shall Indemnifying Party will not relieve it from any liability which it may have hereunder. If the right to Indemnifying Party is requested by such Indemnified Party, the Indemnifying Party will assume the defense thereofof such action or proceeding, including the employment of counsel reasonably satisfactory to Indemnitee the Fund and the payment of all expensesthe fees and disbursements of such counsel. Indemnitee shall In any action or proceeding the defense of which the Indemnifying Party assumes, the Indemnified Party will have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company litigation. The Indemnifying Party further agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Company, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding on behalf of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreementit will not, without the prior written consent of the other party heretoFund, provided that settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Fund or any other Indemnified Party is an actual or potential party to such settlement claim, action, suit or proceeding) unless such settlement, compromise shall not be unreasonably withheld by any or consent includes an unconditional release of the parties hereto Fund and each other Indemnified Party hereunder from all liability arising out of such claim, action, suit or proceeding. (b) If any indemnification sought by an Indemnified Party pursuant to this Agreement is held by a court to be unavailable for any reason, then (whether or not the Fund is the Indemnified Party) the Indemnifying Party will contribute to the Losses for which such Indemnified Party is liable to the fullest extent lawful. (c) The Indemnifying Party will promptly advance or reimburse any Indemnified Party hereunder for all documented expenses (including fees and disbursements of counsel) as they are incurred in connection with investigating, preparing for or defending, or providing evidence in, any pending or threatened action, claim, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any Indemnified Party is a party) and in enforcing this Agreement. (d) The Indemnifying Party's indemnity, contribution, reimbursement and other obligations under this Agreement are in addition to any liability that the Indemnifying Party may otherwise have, at common law or otherwise, and shall be deemed to have been given by the Company if Indemnitee provides the Company with a written notice setting forth the material terms of such settlement or compromise binding on its successors and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee shall not be required to consent to any settlement or compromise that does not include a complete, full and absolute release of the Indemnitee, in form and substance satisfactory to the Indemnitee in his or her sole discretion, from any liability under such claimassigns.

Certain Procedures. If any Claim shall be brought In the event that the Investor or asserted against Indemnitee in respect of which indemnification may be sought hereunder, Indemnitee shall promptly notify the Company in writing(as applicable, the "CLAIMANT") desires to make a claim against the other party to this Agreement (the "INDEMNITOR") under this Section 6, the Claimant shall give prompt written notice to the Indemnitor of any actions, suits, proceedings, and demands at any time instituted or made against Claimant (or, with respect to clause (ii) of Section 6.1(a), against the Company Company), and of any loss, cost, damage or expenses incurred by Claimant (or the Company) and for which the Claimant claims a right to indemnification hereunder; provided, however, that the Claimant's failure to promptly give such notice shall not affect the obligations of an Indemnitor under this Section 6 except to the extent that any defense or counterclaim otherwise available to Indemnitor shall have been prejudiced or the right Indemnitor's obligations shall otherwise have been increased as a consequence of such failure. The Claimant shall, at the time of giving such notice, if the Indemnitor shall agree in writing that it would have responsibility to assume indemnify under this Section 6, give the defense thereofIndemnitor full authority to defend, including adjust, compromise or settle the employment action, suit, proceeding or demand on which such notice is based, in the name of counsel reasonably satisfactory to Indemnitee the Claimant or otherwise as the Indemnitor shall elect unless, (a) there is a conflict or potential conflict of interest between the Claimant and the payment of all expenses. Indemnitee shall have the right to employ separate counsel Indemnitor in any such action and to participate in the defense thereofaction, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company agrees to pay such fees and expensessuit or proceeding, as advised by Claimant's counsel, or (iib) in the Company has failed promptly to assume the defense reasonable judgment of Claimant, an adverse determination of such action action, suit or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may could be one or more legal defenses available to him which are different from or additional to those available materially detrimental to the CompanyClaimant's reputation or future business prospects. In the event of any claims under Section 6 hereof for indemnification, in which case, if Indemnitee notifies the Company Claimant shall advise the Indemnitor in writing that he elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding on behalf of Indemnitee amount and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise shall not be unreasonably withheld by any of the parties hereto and shall be deemed to have been given by the Company if Indemnitee provides the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemniteecircumstances surrounding said claim. Notwithstanding the foregoing, Indemnitee the Company shall promptly notify the Investor of any claim made against the Company alleging that any Shares were not be required to consent to any settlement issued in compliance with all applicable federal or compromise that does not include a complete, full and absolute release of the Indemnitee, in form and substance satisfactory to the Indemnitee in his or her sole discretion, from any liability under such claimstate securities laws.

Certain Procedures. If In the event that either party to this Agreement (the "Claimant") desires to make a claim against the other (the "Indemnitor") under this Article VII, the Claimant shall give prompt written notice to the Indemnitor of any Claim actions, suits, proceedings and demands at any time instituted against or made upon the Claimant and for which the Claimant claims a right to indemnification hereunder. The Claimant shall, at the time of giving such notice, if the Indemnitor shall be brought agree that it would have responsibility to indemnify under this Article VII, give the Indemnitor full authority to defend, adjust, compromise or asserted against Indemnitee settle the action, suit, proceeding or demand on which such notice is based, in respect the name of which indemnification may be sought hereunderthe Claimant or otherwise as the Indemnitor shall elect unless, Indemnitee shall promptly notify in the Company in writingreasonable judgment of the Claimant, there is a conflict or potential conflict of interest between the Claimant and the Company Indemnitor in such action, suit or proceeding, in which event each of the Claimant and the Indemnitor (a) shall each have the right to assume the defense thereof, including the employment at its own expense and with counsel of counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and its choosing to participate in the defense defense, adjustment, compromise or settlement thereof and (b) shall cooperate fully with the other in the defense, adjustment, compromise or settlement thereof, but . Without limiting the fees and expenses generality of such counsel shall be at the expense provisions of Indemnitee unless (i) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the CompanySection 7.1 hereof, in which casethe event of any claims under Article VII hereof for indemnification, if Indemnitee notifies the Company Claimant shall advise the Indemnitor in writing that he elects to employ separate counsel at the expense of the Companyamount (if known) and circumstances surrounding said claim; provided, that the Company failure by the Claimant to include an amount that is not known shall not have prejudice the right to assume recover any amounts which the defense of such action or proceeding on behalf of Indemnitee and Claimant would otherwise be entitled to recover hereunder. With respect to liquidated claims, if within 30 calendar days the Indemnitor has not contested said claim in writing, the Indemnitor shall pay all Expenses including attorneys' fees incurred by Indemnitee the full amount thereof in such defense. Neither the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise shall not be unreasonably withheld by any of the parties hereto and shall be deemed to have been given by the Company if Indemnitee provides the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee cash within 30 calendar days after the Company's receipt expiration of such notice from Indemniteeperiod. Notwithstanding the foregoing, Indemnitee shall not be required to consent With respect to any settlement Loss for which Seller is obligated to pay or compromise that does not include a completereimburse Purchaser pursuant to this Section 7.2, full Purchaser may, at its option, elect to offset against the Remaining Purchase Price Amount and absolute release of accrued interest thereon in accordance with the Indemnitee, provisions specified in form and substance satisfactory to the Indemnitee in his or her sole discretion, from any liability under such claim.Section 2.1 hereof. HOU04:16668.1 -34-

Certain Procedures. If Promptly after receipt by an Indemnified Person of notice of the commencement of any Claim shall claim, litigation, investigation or proceeding relating to this Agreement, the Registration Statement or any prospectus related thereto or any of the transactions contemplated thereby (“Proceedings”), such Indemnified Person will, if a claim is to be brought or asserted made hereunder against Indemnitee the Indemnifying Party in respect of which indemnification may be sought hereunderthereof, Indemnitee shall promptly notify the Company Indemnifying Party in writingwriting of the commencement thereof; provided that (i) the omission so to notify the Indemnifying Party will not relieve it from any liability that it may have hereunder except to the extent it has been materially prejudiced by such failure and (ii) the omission so to notify the Indemnifying Party will not relieve it from any liability that it may have to an Indemnified Person otherwise than on account of this Section 11. In case any such Proceedings are brought against any Indemnified Person and it notifies the Indemnifying Party of the commencement thereof, and the Company shall have Indemnifying Party will be entitled to participate therein, and, to the right extent that it may elect by written notice delivered to such Indemnified Person, to assume the defense thereof, including the employment of with counsel reasonably satisfactory to Indemnitee and such Indemnified Person, provided that if the payment of all expenses. Indemnitee shall have the right to employ separate counsel defendants in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding Proceedings include both Indemnitee such Indemnified Person and Company, the Indemnifying Party and Indemnitee has been advised by counsel such Indemnified Person shall have concluded that there may be one or more legal defenses available to him which it that are different from or additional to those available to the CompanyIndemnifying Party, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company such Indemnified Person shall not have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such Proceedings on behalf of such Indemnified Person. Upon receipt of notice from the Indemnifying Party to such Indemnified Person of its election so to assume the defense of such action or proceeding on behalf Proceedings and approval by such Indemnified Person of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither counsel, the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise Indemnifying Party shall not be unreasonably withheld liable to such Indemnified Person for expenses incurred by any such Indemnified Person in connection with the defense thereof (other than reasonable costs of investigation) unless (i) such Indemnified Person shall have employed separate counsel in connection with the parties hereto and shall be deemed assertion of legal defenses in accordance with the proviso to have been given by the Company if Indemnitee provides next preceding sentence (it being understood, however, that the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee Indemnifying Party shall not be required liable for the expenses of more than one separate counsel, approved by Investors, representing the Indemnified Persons who are parties to consent such Proceedings), (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to any settlement or compromise that does not include such Indemnified Person to represent such Indemnified Person within a complete, full and absolute release reasonable time after notice of commencement of the Indemnitee, Proceedings or (iii) the Indemnifying Party shall have authorized in form and substance satisfactory to writing the Indemnitee in his or her sole discretion, from any liability under employment of counsel for such claimIndemnified Person.

Certain Procedures. If An Indemnified Party shall give the party indemnifying such Indemnified Party (the "INDEMNIFYING PARTY") notice of any Claim shall be brought matter which such Indemnified Party has determined has given or asserted against Indemnitee would give rise to a right of indemnification under this Agreement, within 60 days of such determination, stating the amount of the Loss, if known, and method of computation thereof in reasonable detail, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and Liabilities of an Indemnifying Party under this Article IX with respect to Losses arising from claims of any third party that are subject to the indemnification provided for in this Article IX ("THIRD PARTY CLAIMS") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, such Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim within 60 days of the receipt by the Indemnified Party of such notice; PROVIDED, HOWEVER, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article IX except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or Liability that it may have to any Indemnified Party otherwise than under this Article IX. The Indemnifying Party shall be sought hereunder, Indemnitee shall promptly notify the Company in writing, and the Company shall have the right entitled to assume the defense thereof, including the employment of counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume control the defense of such action or proceeding Third Party Claim at its expense and employ through counsel of its choice reasonably satisfactory to Indemnitee the Indemnified Party if it gives notice of its intention to do so to such Indemnified Party within five (5) days of the receipt of such notice from the Indemnified Party; PROVIDED, HOWEVER, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in any the reasonable judgment of such action or proceedingIndemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, or (iii) then the named parties Indemnified Party shall be entitled to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Companyretain its own counsel, in each jurisdiction for which casethe Indemnified Party determines counsel is required, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, Indemnifying Party. In the Company shall not have event that the Indemnifying Party exercises the right to assume undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party's expense, all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control relating thereto as reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense of against any such action or proceeding on behalf of Indemnitee and Third Party Claim, the Indemnifying Party shall pay all Expenses including attorneys' fees incurred by Indemnitee cooperate with the Indemnified Party in such defensedefense and make available to the Indemnified Party, at the Indemnifying Party's expense, all such witnesses, pertinent records, materials and information in the Indemnifying Party's possession or under the Indemnifying Party's control relating thereto as reasonably required by the Indemnified Party. Neither No such Third Party Claim may be settled by the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, Indemnifying Party without the prior written consent of the other party hereto, provided that consent to such settlement or compromise shall not be unreasonably withheld by any of the parties hereto and shall be deemed to have been given by the Company if Indemnitee provides the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee shall not be required to consent to any settlement or compromise that does not include a complete, full and absolute release of the Indemnitee, in form and substance satisfactory to the Indemnitee in his or her sole discretion, from any liability under such claimIndemnified Party.

Certain Procedures. If (a) The Party claiming indemnification (the “Indemnified Party”) will give to the other Party (the “Indemnifying Party”) prompt written notice of any Claim shall be brought Loss, or asserted against Indemnitee in respect of expected Loss, for which the Indemnified Party proposes to claim indemnification may be sought hereunder, Indemnitee which shall include the nature of such Loss and the amount or the estimated amount thereof to the extent then feasible (which estimate will not be conclusive of the final amount of such Loss) (such notice being a “Claim Notice”). The failure to give, or promptly notify give, a Claim Notice to the Company in writingIndemnifying Party will not relieve the Indemnifying Party of any liability hereunder unless the Indemnifying Party was prejudiced thereby, and then only to the Company shall extent of such prejudice. (b) If a claim for indemnification relates to a claim by a Person not a party hereto (such Person’s claim being a “Third Party Claim”), upon receipt of such notice the Indemnifying Party will have the right option to forthwith assume the defense thereof, including the employment of counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses Good Faith Defense (as hereinafter defined) of such Third Party Claim. “Good Faith Defense” means legal defense conducted by reputable counsel shall of good standing selected with the consent of the Indemnified Party (which consent will not be at unreasonably withheld or delayed). If the expense Indemnifying Party does not commence a Good Faith Defense within 20 days following receipt of Indemnitee unless the Claim Notice regarding the Third Party Claim (i) the Company agrees to pay or such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Company, in which caseshorter period, if Indemnitee notifies any, during which a defense must be commenced to preserve either Party’s rights), then the Company in writing that he elects to employ separate counsel Indemnified Party may, at the expense of the Companyits option, the Company shall not have the right to assume the defense of such action or proceeding on behalf of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified defend such claim. Notwithstanding the Company that he seeks indemnification under this Agreementforegoing, without the prior written consent of the other party heretoParty, provided neither Party may agree to any injunctive relief affecting such other Party or any settlement that consent to such settlement would adversely affect the business or compromise shall not be unreasonably withheld by any of the parties hereto and shall be deemed to have been given by the Company if Indemnitee provides the Company with a written notice setting forth the material terms operations of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee shall not be required to consent to any settlement or compromise that does not include a complete, full and absolute release of the Indemnitee, in form and substance satisfactory to the Indemnitee in his or her sole discretion, from any liability under such claimother Party.

Certain Procedures. If any Claim shall be brought or asserted against Indemnitee in respect of which indemnification may be sought hereunder, Indemnitee shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised AGR will transmit by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Company, in which casewire or, if Indemnitee notifies requested by Seller, by check the Company in writing that he elects to employ separate counsel at the expense Advanced Amount of the Company, Purchase Price for each Batch of Purchased Receivables on the Company shall not have next business day following the right to assume the defense business day of such action or proceeding on behalf of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise shall not be unreasonably withheld by any of the parties hereto and shall be deemed to have been given by the Company if Indemnitee provides the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the CompanyAGR's receipt of the Assignment covering such notice from IndemniteeBatch executed by the Seller or, if such Assignment is received after 1:00 p.m., on the second business day thereafter (a "Purchase Date"). Notwithstanding All wire and other transfer charges shall be for the foregoingaccount of the Seller. Upon such payment, Indemnitee shall not the Seller will have sold to AGR all of the Seller's right, title and interest in such Batch of Purchased Receivables and other Transferred Property and in any proceeds thereof, and AGR will be required to consent to any settlement or compromise that does not include a complete, full the sole and absolute release owner thereof and will own all of the IndemniteeSeller's rights and remedies represented by such Batch of Purchased Receivables (including, without limitation, rights to direct or indirect payment from the respective Payors on such Batch of Purchased Receivables), and AGR will have obtained all of the Seller's rights under all guarantees, assignments and securities with respect to each Purchased Receivable included in such Batch. The Seller shall execute (or cause to be executed) all required Uniform Commercial Code releases or financing statements in favor of AGR. Collection and Servicing of Purchased Receivables. Prior to the sale of any Batch of Receivables hereunder, the Seller shall establish an account for all of its Receivables (the "Lockbox Account"), at Summit Bank or at such other bank as AGR may approve in writing (the "Lockbox Bank"), and shall enter into an agreement relating thereto in form and substance satisfactory to AGR and the Indemnitee Lockbox Bank. The Lockbox Account shall be an account in his the name of AGR or her its designee, and shall be the sole discretionand exclusive property of AGR and its designee. All charges in connection with the Lockbox Account shall be for the account of the Seller. In the event that the Seller directly receives any payments in respect of Purchased Receivables, the Seller shall within two (2) Business Days after receipt thereof (i) deposit in the Lockbox Account all such payments on Purchased Receivables and (ii) send to AGR or its designee all remittance advices accompanying such payments or, if no such remittance advice accompanied any such payment, notice of the amount so received. Upon AGR's receipt of a remittance advice from the Lockbox Bank confirming that it has received payments on Receivables purchased, funds will be posted by AGR (the "Application of Payments"), to the specific Receivable within AGR's respective Batch. Such funds will be retained by AGR until the aggregate Break-even Point with respect to such Batch is reached. Thereafter, such amounts shall be payable to Seller as the Seller Interest promptly after receipt thereof (subject, in each case, to permitted offsets under this Agreement) on each Friday or if such day is not a business day, the next succeeding business day (each a "Settlement Date"). On each Settlement Date, AGR will deliver to the Seller a report (the "Settlement Report") substantially in the form of Exhibit B hereto. Each Settlement Report will set forth AGR's Application of Payments with respect to a Batch together with a list of Ineligible Receivables (as defined in Section 6 below) included in such Batch. Such Settlement Report may also list those Receivables included in such Batch with respect to which AGR has been unable to make a determination as to their continuing eligibility (the "Outstanding Receivables"). In the event that Seller has not disputed the Application of Payments contained in any liability under Settlement Report within thirty (30) business days after its receipt by Seller, then all such claimundisputed Application of Payments shall be deemed final. The Seller shall be responsible for servicing and collection of Purchased Receivables subject to the terms and conditions of a Servicing Agreement, dated as of August __, 1997 by and between the Seller, as primary servicer (the "Primary Servicer"), and AGR. AGR shall have the right, upon the terms and conditions set forth in such Servicing Agreement, to terminate such Servicing Agreement and to designate a "Back-up Servicer" which may be AGR.

Certain Procedures. If (a) Promptly upon becoming aware of the existence of any Claim as to which Indemnitee may be indemnified for Expenses or Indemnifiable Costs and as to which Indemnitee desires to obtain indemnification, Indemnitee shall notify the Chairman of the Board of the Corporation, but the failure to promptly notify the Chairman of the Board shall not relieve the Corporation from any obligation hereunder, except and to the extent that such failure has materially and irrevocably harmed the Corporation’s ability to defend against such Claim pursuant to Section 7(d) hereof. Upon receipt of such request, accompanied by such documentation and information as is not privileged or otherwise protected from disclosure, is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification, the Chairman of the Board shall promptly advise the members of the Board of Directors of the request and that the establishment of a Determining Body with respect thereto will be a matter to be considered at the next regularly scheduled meeting of the Board. If a meeting of the Board of Directors is not regularly scheduled within 30 calendar days of the date the Chairman of the Board receives notice of the Claim, the Chairman of the Board shall cause a special meeting of the Board of Directors to be called within such period in accordance with the provisions of the Corporation’s By-laws. The Determining Body shall be brought established at such regularly scheduled meeting or asserted against special meeting, as the case may be. After the Determining Body has been established, the Chairman of the Board shall inform Indemnitee in respect of the constitution of the Determining Body. At any time after the Determining Body has been convened, it shall have the power, but not the obligation, to determine whether or not Indemnitee has met the Standard of Conduct and, at such time the determination is made, the Determining Body shall advise Indemnitee of its determination. The Determining Body shall make its decision as to whether the Standard of Conduct has been met by the Indemnitee no later than 30 days following the date that a final judgment has been entered, or a settlement has been agreed, of the Claim (the “Determination Deadline Date”). If Indemnitee shall have made a good faith effort to comply with any requests of the Determining Body for relevant information related to the Claim, including reasonable requests for additional information reasonably requested by the Determining Body, any failure of the Determining Body to make a determination by the Determination Deadline Date as to whether the Standard of Conduct was met shall be deemed to be a determination that the Standard of Conduct was met by Indemnitee. (b) If at any time during the period prior to the Determination Deadline Date, Indemnitee becomes aware of any relevant facts or obtains possession of documents not theretofore provided by him to the Determining Body, which indemnification may be sought hereunderfacts are not privileged or otherwise protected from disclosure, and are reasonably necessary to determine whether and to what extent Indemnitee is entitled to Indemnification, Indemnitee shall promptly notify inform the Company in writingDetermining Body of such facts or documents, and unless the Company Determining Body has obtained such facts or documents from another source. (c) The Determining Body shall have no power to revoke a determination that Indemnitee met the right Standard of Conduct unless Indemnitee (i) has submitted fraudulent information to the Determining Body at any time prior to the Determination Deadline Date or (ii) fails to comply with the provisions of Sections 7(a) or 7(b) hereof, including without limitation Indemnitee’s obligation to submit information or documents relevant to the Claim reasonably requested by the Determining Body prior to the Determination Deadline Date. (d) In the case of any Claim not involving any proposed, threatened or pending criminal proceeding, (i) the Corporation may, except as otherwise provided in this subsection (i) or in subsection (iii) below, individually or jointly with any other indemnifying party similarly notified, assume the defense thereof, including the employment of thereof with counsel reasonably satisfactory to Indemnitee. If the Corporation assumes the defense of the Claim, it shall keep Indemnitee and informed as to the payment progress of all expensessuch defense so that Indemnitee may make an informed decision as to the need for separate counsel. After notice from the Corporation that it is assuming the defense of the Claim, it will not, except as specifically provided in clause (iii) below, be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense other than reasonable costs of investigation or as otherwise provided below. 7 Indemnitee shall have the right to employ separate its own counsel in any such action and to participate in the defense thereofaction, suit or proceeding but the fees and expenses of such counsel incurred after such notice from the Corporation of its assumption of the defense shall be at the expense of Indemnitee unless (iA) the Company agrees to pay employment of counsel by Indemnitee has been authorized by the Determining Body, (B) Indemnitee shall have concluded reasonably that there may be a conflict of interest between the Corporation and Indemnitee in the conduct of the defense of such fees and expenses, action or (iiC) the Company has failed promptly Corporation shall not in fact have employed counsel to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Companyaction, in each of which case, if Indemnitee notifies cases the Company in writing that he elects to employ separate fees and expenses of counsel shall be at the expense of the Company, the Company Corporation. The Corporation shall not have the right be entitled to assume the defense of such action any action, suit or proceeding on behalf brought by or in the right of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle Corporation or compromise any Claim as to which Indemnitee shall have made the conclusion provided for in (B) above; (ii) the Corporation shall fairly consider any proposals by Indemnitee for settlement of the Claim. If the Corporation proposes a settlement of the Claim and such settlement is acceptable to the person asserting the Claim, or the Corporation believes a settlement proposed by the person asserting the Claim should be accepted, it shall inform Indemnitee of the terms of such proposed settlement and shall fix a reasonable date by which Indemnitee shall respond. If Indemnitee agrees to such terms, he shall execute such documents as shall be necessary to make final the settlement. If Indemnitee does not agree with such terms, Indemnitee may proceed with the defense of the Claim in any manner he chooses, provided that if Indemnitee is not successful on the merits or otherwise, the Corporation’s obligation to indemnify such Indemnitee as to any Expenses or Indemnifiable Costs incurred following his disagreement with the Corporation shall be limited to the lesser of (A) the total Expenses or Indemnifiable Costs incurred by Indemnitee following his decision not to agree to such proposed settlement or (B) the amount that the Corporation would have paid pursuant to the terms of the proposed settlement. If, however, the proposed settlement would impose upon Indemnitee any Indemnifiable Cost or other charge or penalty that is not fully indemnified hereunder or any requirement to act or refrain from acting that would materially interfere with the conduct of Indemnitee’s affairs, Indemnitee may refuse such settlement and continue his defense of the Claim, if he so desires, at the Corporation’s expense in accordance with the terms and conditions of this Agreement without regard to the limitations imposed by the immediately preceding sentence. In any event, the Corporation shall not be obligated to indemnify Indemnitee for any amount paid in a settlement that the Corporation has notified not approved; and (iii) following a Change of Control, if Indemnitee is an Independent Director, he, together with the Company other Independent Directors, shall be entitled to employ, and be reimbursed for the fees and disbursements of, counsel separate from that he seeks indemnification under this Agreementchosen by Indemnitees who are not Independent Directors of the Corporation (including indemnified officers of the Corporation). The principal counsel for the Independent Directors (“Principal Counsel”) shall be determined by majority vote of the Independent Directors, without and the prior written principal counsel for the Indemnitees who are not Independent Directors (“Separate Counsel”) shall be determined by majority vote of such Indemnitees, in each case subject to the consent of the Corporation (not to be unreasonably withheld or delayed). The obligation of the Corporation to reimburse Indemnitee for the fees and disbursements of counsel hereunder shall not extend to the fees and disbursements of any counsel employed by Indemnitee other party heretothan Principal Counsel or Separate Counsel, provided as the case may be, except to the extent authorized by subsection (d)(i) above. (e) In the case of any Claim involving a proposed, threatened or pending criminal proceeding, Indemnitee shall be entitled to conduct the defense of the Claim with counsel of his choice and to make all decisions with respect thereto, provided, however, that consent to such settlement or compromise the Corporation shall not be unreasonably withheld obliged to indemnify Indemnitee for any amount paid in settlement of such a Claim unless the Corporation has approved such settlement (f) Any determination by any the Corporation with respect to settlement of the parties hereto and a Claim shall be deemed to have been given made by the Company if Indemnitee provides Determining Body. (g) All determinations and judgments made by the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto Determining Body hereunder shall be made in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee shall not be required to consent to any settlement or compromise that does not include a complete, full and absolute release of the Indemnitee, in form and substance satisfactory to the Indemnitee in his or her sole discretion, from any liability under such claimgood faith.

Certain Procedures. If any Claim shall be brought action, suit, proceeding, claim or demand is instituted or asserted against Indemnitee by a third party in respect of which indemnification may indemnity will be sought hereunderhereunder (any such matter being hereinafter referred to as a "Third Party Claim"), Indemnitee the following provisions shall promptly notify apply: (a) The party against whom indemnity is sought hereunder (the Company in writing, and the Company "Indemnifying Party") shall have the right, at its option and at its own expense, to be represented by counsel of its choice in connection with such matter, and to assume and control the defense of and settle or otherwise deal with such Third Party Claim, provided that it acts in good faith. Failure by the Indemnifying Party to notify the party seeking indemnification (the "Indemnified Party") of its election to defend against and otherwise control a Third Party Claim within twenty (20) days after written notice of such Third Party Claim shall have been given to the Indemnifying Party by the Indemnified Party shall be deemed a waiver by the Indemnifying Party of its right to assume and control the defense thereofof and otherwise control such matter. If the Indemnifying Party assumes defense and control of a Third Party Claim, the Indemnified Party shall in all events be entitled to indemnity with respect to such matter, to the extent provided in this Agreement. The Indemnifying Party may not settle any Third Party Claim without the consent of the Indemnified Party, which will not unreasonably be withheld or delayed. In the event that the Indemnifying Party does not elect to defend and otherwise control a Third Party Claim, the Indemnified Party may defend against or otherwise deal with such matter in such manner as it may deem appropriate, provided that it acts in good faith and provided it may not settle a Third Party Claim without the consent of the Indemnifying Party which may not be unreasonably withheld and the Indemnifying Party shall be liable for indemnification with respect to such matter, including without limitation the employment of counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses cost of such counsel shall be at defense, to the expense of Indemnitee unless (i) extent provided in this Agreement. If the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to Indemnifying Party does not assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in a Third Party Claim for any such action or proceedingreason, or (iii) the named parties to any such action or proceeding include both Indemnitee and Companyit may still participate in, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him which are different from or additional to those available to the Companybut not control, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action Third Party Claim at the Indemnifying Party's sole cost and expense. (b) The parties agree that they will cooperate fully with each other in connection with the defense or proceeding on behalf settlement of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defenseany Third Party Claim. Neither It is further agreed that the Company nor Indemnitee may settle or compromise party controlling any Third Party Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of will keep the other party hereto, provided that consent advised as to the status of such settlement or compromise shall not be unreasonably withheld by any of the parties hereto and Third Party Claim. (c) The Indemnifying Party shall be deemed to have been given by the Company if Indemnitee provides the Company with a written notice setting forth the material terms of such settlement or compromise subrogated to, and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee Indemnified Party shall not be required to consent to any settlement or compromise that does not include a complete, full and absolute release of the Indemnitee, in form and substance satisfactory assign to the Indemnitee in his Indemnifying Party, any claim which is the subject of reimbursement or her sole discretion, from any liability payment under such claimthe foregoing Sections 7.1 or 7.2.

Certain Procedures. If any Promptly after receipt by an Indemnified Person of notice of the commencement of a Claim shall (a “Proceeding”), such Indemnified Person will, if a claim is to be brought or asserted made hereunder against Indemnitee the Indemnifying Party in respect of which indemnification may be sought hereunderthereof, Indemnitee shall promptly (and in any event within ten Business Days) notify the Company Indemnifying Party in writingwriting of the commencement thereof; provided that (i) the omission so to notify the Indemnifying Party will not relieve it from any liability that it may have hereunder except to the extent it has been materially prejudiced by such failure and (ii) the omission so to notify the Indemnifying Party will not relieve it from any liability that it may have to an Indemnified Person otherwise than on account of this Section 8. In case any such Proceedings are brought against any Indemnified Person and it notifies the Indemnifying Party of the commencement thereof, and the Company shall have Indemnifying Party will be entitled to participate therein, and, to the right extent that it may elect by written notice delivered to such Indemnified Person, to assume the defense thereof, including the employment of with counsel reasonably satisfactory to Indemnitee and such Indemnified Person, provided that if the payment of all expenses. Indemnitee shall have the right to employ separate counsel defendants in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding Proceedings include both Indemnitee such Indemnified Person and Company, the Indemnifying Party and Indemnitee has been advised by counsel such Indemnified Person shall have reasonably concluded that there may be one or more legal defenses available to him which it that are different from or additional to those available to the CompanyIndemnifying Party, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company such Indemnified Person shall not have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such Proceedings on behalf of such Indemnified Person. Upon receipt of notice from the Indemnifying Party to such Indemnified Person of its election so to assume the defense of such action or proceeding on behalf Proceedings and approval by such Indemnified Person of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither counsel, the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise Indemnifying Party shall not be unreasonably withheld liable to such Indemnified Person for expenses incurred by any such Indemnified Person in connection with the defense thereof (other than reasonable costs of investigation) unless (i) such Indemnified Person shall have employed separate counsel in connection with the parties hereto and shall be deemed to have been given by assertion of legal defenses in accordance with the Company if Indemnitee provides preceding sentence (it being understood, however, that the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee Indemnifying Party shall not be required liable for the expenses of more than one separate counsel in addition to consent local counsel, approved by the Required Backstop Purchasers, representing the Indemnified Persons who are parties to any settlement or compromise that does such Proceedings), (ii) the Indemnifying Party shall not include have employed counsel reasonably satisfactory to such Indemnified Person to represent such Indemnified Person within a complete, full and absolute release reasonable time after notice of commencement of the Indemnitee, Proceedings or (iii) the Indemnifying Party shall have authorized in form and substance satisfactory to writing the Indemnitee in his or her sole discretion, from any liability under employment of counsel for such claimIndemnified Person.

Certain Procedures. If In the event that a claim is made by a third party against any Claim shall be brought Investor Indemnitee or asserted against Company Indemnitee in respect of which (the "Claimant") which, if successful, would entitle such Claimant to indemnification may be sought hereunder, Indemnitee or any Claimant desires to make a claim against any party to this Agreement (the "Indemnitor") under this Section 6, the Claimant shall promptly notify give prompt notice to the Company Indemnitor of any actions, suits, proceedings and demands at any time instituted against or made upon Claimant and for which the Claimant claims a right to indemnification hereunder (including the amount and circumstances surrounding any claim); PROVIDED that the failure of a Claimant to give notice as provided in writingthis Section 6.2 shall not relieve the Indemnitor of its obligations hereunder, and except to the Company extent that the Indemnitor is actually prejudiced by such failure to give notice. The Indemnitor shall within 30 days after receipt of notice undertake to defend, adjust, compromise or settle the action, suit, proceeding or demand on which such notice is based, in the name of the Claimant or otherwise as the Indemnitor shall elect. Notwithstanding the foregoing, the Claimant shall have the right to assume defend, adjust, compromise or settle any action, suit, proceeding or demand on its own behalf and to be indemnified therefor if (a) the defense thereofIndemnitor does not provide the undertaking referred to in the previous sentence, including (b) the employment of Indemnitor has not employed counsel reasonably satisfactory to Indemnitee and the payment of all expenses. Indemnitee shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company agrees to pay such fees and expensesClaimant, or (iic) in the Company has failed promptly to assume sole discretion of the Claimant, there is a conflict or potential conflict of interest between the Claimant and the Indemnitor or a legal defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding include both Indemnitee and Company, and Indemnitee has been advised by counsel that there may be one or more legal defenses available to him it which are different differs from or is additional to those available to the CompanyIndemnitor, in which casesuch action, if Indemnitee notifies suit or proceeding. The Indemnitor shall not, except with the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding on behalf of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party heretoClaimant, provided that consent to such settlement or compromise shall not be unreasonably withheld by any of the parties hereto and shall be deemed to have been given by the Company if Indemnitee provides the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee shall not be required to consent to enter into any settlement or compromise that does not include as a complete, full and absolute term thereof an unconditional release of the Indemnitee, in form and substance satisfactory Claimant from all liability with respect to the Indemnitee in his or her sole discretion, from any liability under such applicable claim.

Certain Procedures. If Promptly after receipt by an Indemnified Person of notice of the commencement of any Claim shall claim, litigation, investigation or proceeding relating to the Transaction Documents, the Registration Statement, the Prospectus or any of the transactions contemplated thereby (“Proceedings”), such Indemnified Person will, if a claim is to be brought or asserted made hereunder against Indemnitee the Indemnifying Party in respect of which indemnification may be sought hereunderthereof, Indemnitee shall promptly (and in any event within 10 Business Days) notify the Company Indemnifying Party in writingwriting of the commencement thereof; provided that (i) the omission so to notify the Indemnifying Party will not relieve it from any liability that it may have hereunder except to the extent it has been materially prejudiced by such failure and (ii) the omission so to notify the Indemnifying Party will not relieve it from any liability that it may have to an Indemnified Person otherwise than on account of this Section 8. In case any such Proceedings are brought against any Indemnified Person and it notifies the Indemnifying Party of the commencement thereof, and the Company shall have Indemnifying Party will be entitled to participate therein, and, to the right extent that it may elect by written notice delivered to such Indemnified Person, to assume the defense thereof, including the employment of with counsel reasonably satisfactory to Indemnitee and such Indemnified Person, provided that if the payment of all expenses. Indemnitee shall have the right to employ separate counsel defendants in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of Indemnitee unless (i) the Company agrees to pay such fees and expenses, or (ii) the Company has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to Indemnitee in any such action or proceeding, or (iii) the named parties to any such action or proceeding Proceedings include both Indemnitee such Indemnified Person and Company, the Indemnifying Party and Indemnitee has been advised by counsel such Indemnified Person shall have reasonably concluded that there may be one or more legal defenses available to him which it that are different from or additional to those available to the CompanyIndemnifying Party, in which case, if Indemnitee notifies the Company in writing that he elects to employ separate counsel at the expense of the Company, the Company such Indemnified Person shall not have the right to select separate counsel to assert such legal defenses and to otherwise participate (but not control) in the defense of such Proceedings on behalf of such Indemnified Person. Upon receipt of notice from the Indemnifying Party to such Indemnified Person of its election so to assume the defense of such action or proceeding on behalf Proceedings and approval by such Indemnified Person of Indemnitee and shall pay all Expenses including attorneys' fees incurred by Indemnitee in such defense. Neither counsel, the Company nor Indemnitee may settle or compromise any Claim as to which Indemnitee has notified the Company that he seeks indemnification under this Agreement, without the prior written consent of the other party hereto, provided that consent to such settlement or compromise Indemnifying Party shall not be unreasonably withheld liable to such Indemnified Person for expenses incurred by any such Indemnified Person in connection with the defense thereof (other than reasonable costs of investigation) unless (i) such Indemnified Person shall have employed separate counsel in connection with the parties hereto and shall be deemed assertion of legal defenses in accordance with the proviso to have been given by the Company if Indemnitee provides next preceding sentence (it being understood, however, 22 that the Company with a written notice setting forth the material terms of such settlement or compromise and the Company does not object thereto in a written notice delivered to Indemnitee within 30 calendar days after the Company's receipt of such notice from Indemnitee. Notwithstanding the foregoing, Indemnitee Indemnifying Party shall not be required liable for the expenses of more than one separate counsel, approved by Investors, representing the Indemnified Persons who are parties to consent such Proceedings), (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to any settlement or compromise that does not include such Indemnified Person to represent such Indemnified Person within a complete, full and absolute release reasonable time after notice of commencement of the Indemnitee, Proceedings or (iii) the Indemnifying Party shall have authorized in form and substance satisfactory to writing the Indemnitee in his or her sole discretion, from any liability under employment of counsel for such claimIndemnified Person.