Common use of Notice and Right to Defend Clause in Contracts

Notice and Right to Defend. Promptly upon receipt of notice of any claim, demand or assessment or the commencement of any suit, action or proceedings in respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer or otherwise plead in such action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except to the extent that the Indemnitor is not prejudiced thereby, the omission of such Indemnitee to notify promptly the Indemnitor of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitor to the Indemnitee of its election so to assume the defense, conduct or settlement thereof, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable in connection with the defense of any such claim.

Notice and Right to Defend. Promptly upon receipt The Sellers, on the one hand, and the Buyer, on the other hand, hereto agree to give prompt notice to the other of notice the assertion of any claim, demand or assessment or the commencement of any suit, action or proceedings proceeding in respect of which indemnity may be sought on account hereunder, provided that the failure to give such notice to the indemnifying party shall not relieve the indemnifying party of any liability that it may have to an indemnity agreement contained in this Section, the indemnified party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer or otherwise plead in such action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except except to the extent that the Indemnitor is not indemnifying party shall have been materially prejudiced thereby, in its ability to defend the omission of such Indemnitee to notify promptly the Indemnitor of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against for which such indemnity is sought by reason of such failure. The indemnifying party shall have the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, right to assume the defensedefense of any third-party claim, conduct suit, action or settlement thereofproceeding in respect of which indemnity hereunder is sought by giving prompt notice to the indemnified party. In the event that the indemnifying party elects to assume the defense of such claim, with suit, action or proceeding, the indemnifying party shall promptly retain counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitor to the Indemnitee of its election so to assume the defense, conduct or settlement thereof, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement thereofindemnified party. The Indemnitee will cooperate with indemnified party shall have the Indemnitor right to employ its own counsel in connection with any such claim, make personnelsuit, books action or proceeding, but the fees and records relevant expenses of such counsel shall be at the expense of the indemnified party unless (a) the employment of such counsel shall have been authorized by the indemnifying party, (b) the indemnifying party shall not have promptly retained counsel reasonably satisfactory to the claim indemnified party to take charge of the defense of such claim, suit, action or proceeding; (c) the indemnified party shall have concluded that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnitor, and grant such authorizations indemnifying party or powers of attorney to (d) the agents, representatives and counsel resolution of the Indemnitor as matter being contested may, in the Indemnitor may reasonably consider desirable reasonable judgment of the indemnified party, have a material adverse effect on the indemnified party's business, in connection with which event such fees and expenses shall be borne by the indemnifying party. If an indemnifying party elects to assume the defense of any such claim, suit, action or proceeding, (i) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party's written consent, and (ii) the indemnifying party shall have no liability for any settlement or compromise by the indemnified party with any third party relating to any such claim, suit, action or proceeding effected without the prior written consent of the indemnifying party. Notwithstanding the foregoing, if an indemnified party determines that there is a reasonable possibility that any such claim, suit, action or proceeding may adversely affect it or its business or any of its subsidiaries or affiliates, such indemnified party may, by written notice to the indemnifying party assume the exclusive right to defend such claim, suit, action or proceeding. If the indemnifying party fails to give written notice to the indemnified party of its election to assume the defense of any claim, suit, action or proceeding for which it is called upon to indemnify an indemnified party pursuant to this Article IX within thirty (30) days after the indemnified party gives notice to the indemnifying party of the commencement of such claim, suit, action or proceeding, the indemnifying party shall be bound by any determination made in any such claim, suit, action or proceeding or compromise or settlement thereof effected by the indemnified party.

Notice and Right to Defend. Promptly upon receipt of If any Claim arises after the Closing -------------------------- Date for which Buyer or Sellers may be liable under paragraph 9.1.1 or 9.1.2, --------------- ----- the indemnitee shall notify the indemnitor within a reasonable time after the indemnitee receives written notice of any claimClaim, demand and shall give the indemnitor a reasonable opportunity to settle or assessment defend any such Claim; provided, however, that the indemnitee's failure to give such notice or the commencement of any suit, action or proceedings in respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer opportunity shall not impair or otherwise plead in affect the indemnitor's obligation to indemnify against such action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except Claim except to the extent that the Indemnitor is not prejudiced therebyindemnitor demonstrates actual damage caused by such failure; and, provided further, that the omission indemnitee may commence to settle or defend the Claim as circumstances warrant, but any settlement shall require the prior written consent of the indemnitor. The expenses of all proceedings, contests or lawsuits with respect to Claims shall be borne by the indemnitor. If an indemnitor wishes to assume the defense of a Claim, it shall give written notice to the indemnitee within ten (10) days after notice from the indemnitee of such Indemnitee to notify promptly the Indemnitor of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the IndemniteeClaim, and the Indemnitee indemnitor shall notify thereafter defend the Indemnitor of the commencement thereofClaim, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with employing counsel reasonably satisfactory to the Indemniteeindemnitee, provided that the indemnitee may participate in the defense at its own expense. After notice from If the Indemnitor to the Indemnitee of its election so to indemnitor does not assume the defensedefense of, conduct or settlement thereofif after so assuming it fails to defend, any such claim, the Indemnitor will not be liable to indemnitee may defend it in such manner as it may reasonably deem appropriate, and the Indemnitee indemnitee may settle such Claim on such terms as it may reasonably deem appropriate so long as such settlement only requires the payment of cash. The indemnitor shall promptly reimburse the indemnitee for any all reasonable expenses, legal or other expenses subsequently and otherwise, as incurred by the Indemnitee indemnitee in connection with the defense, conduct appeal and settlement of such Claim. If no settlement of such a Claim is made, the indemnitor shall satisfy any judgment rendered with respect to it before the indemnitee is required to do so. If a judgment is rendered against the indemnitee on any Claim, or settlement thereofany lien attaches to any of the assets of any indemnitee, the indemnitor shall immediately upon such entry or attachment pay such judgment in full or discharge such lien unless, at the expense and direction of the indemnitor, an appeal is taken under which the execution of the judgment or satisfaction of the lien is stayed. The Indemnitee will cooperate with the Indemnitor If and when a final judgment is rendered in connection with any such claimaction, make personnel, books and records relevant the indemnitor shall forthwith pay such judgment or discharge such lien before any indemnitee is compelled to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable in connection with the defense of any such claimdo so.

Notice and Right to Defend. Promptly upon receipt (a) Should any claim or action by a third party arise after the Closing Date for which Buyer or Seller may be liable to the other under the indemnity provisions of this Agreement, the indemnitee shall notify the indemnitor in writing and in reasonable detail as soon as practicable after the indemnitee receives notice of any claim, demand or assessment or the commencement of any suit, action or proceedings in respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer action in the manner provided for the giving of notices under this Agreement. The expenses of all proceedings, contests, lawsuits, or otherwise plead in investigations of claims with respect to such claims or actions, shall be borne by the indemnitor. If an indemnitor wishes to assume the defense of such claim or action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except it shall give written notice to the extent that indemnitee within 10 days after notice from the Indemnitor is not prejudiced thereby, the omission indemnitee of such Indemnitee claim or action of its intention to notify promptly assume the Indemnitor defense, and the indemnitor shall thereafter assume the defense of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with through counsel reasonably satisfactory to the Indemnitee. After notice from indemnitee, provided that the Indemnitor to indemnitee may also participate in such defense at its own expense; (b) If the Indemnitee of its election so to indemnitor shall not assume the defensedefense of, conduct or settlement thereofif after so assuming it shall fail to defend, any such claim or action, the Indemnitor will not be liable to indemnitee may defend against any such claim or action in such manner as it may reasonably deem appropriate and the Indemnitee indemnitee may settle such claim or litigation on such terms as it may reasonably deem appropriate, and the indemnitor shall promptly reimburse the indemnitee for any the amount of all reasonable expenses, legal or other expenses subsequently and otherwise, incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable indemnitee in connection with the defense and/or settlement of such claim or action. If no settlement 41 of such claim or action is made, the indemnitor shall satisfy any judgment rendered with respect to such claimclaim or in such action before indemnitee is required to do so, and pay all expenses, legal or otherwise, incurred by the indemnitee in the defense against such claim or litigation.

Notice and Right to Defend. THIRD-PARTY CLAIMS. Promptly upon receipt of notice of any claim, demand or assessment or the commencement of any suit, action or proceedings in proceeding with respect of to which indemnity may be sought on account of an indemnity agreement contained in pursuant to this SectionAgreement, the party seeking indemnification to be indemnified or held harmless (the “"Indemnitee”") will notifyshall notify in writing, within sufficient time to respond to such claim or answer or otherwise plead in such actionaction (but in any event within ten (10) days), the party from whom indemnification is sought (the “"Indemnitor”"), in writing thereof. Except to the extent that the Indemnitor is not prejudiced thereby, the omission of such Indemnitee to notify promptly the Indemnitor of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted asserted, or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of shall be entitled, at the commencement thereofIndemnitor's expense, the Indemnitor will be entitled to participate therein, therein and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, at its own expense, with counsel reasonably satisfactory to the Indemnitee, whose consent to the selection of counsel shall not be unreasonably withheld or delayed. The Indemnitor shall have the right to settle or compromise monetary claims without the consent of Indemnitee; however, as to any other claim, the Indemnitor shall first obtain the prior written consent from the Indemnitee, which consent shall be exercised in the sole discretion of the Indemnitee. After notice from the Indemnitor to the Indemnitee of its election Indemnitor's intent so to assume the defense, conduct conduct, settlement or settlement thereofcompromise of such action, the Indemnitor will shall not be liable to the Indemnitee for any legal or other expenses (including, without limitation, settlement costs) subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement thereofof such action while the Indemnitor is diligently defending, conducting, settling or compromising such action. The Indemnitor shall keep the Indemnitee apprised of the status of the suit, action or proceeding and shall make Indemnitor's counsel available to the Indemnitee to advise the Indemnitee of the status, at the Indemnitor's expense, upon the request of the Indemnitee. The Indemnitee will shall cooperate with the Indemnitor in connection with any such claim, claim and shall make personnel, books and records and other information relevant to the claim available to the Indemnitor to the extent that such personnel, books and records and other information are in the possession and/or control of the Indemnitee. If the Indemnitor decides not to participate, the Indemnitee shall be entitled, at the Indemnitor's expense, to defend, conduct, settle or compromise such matter with counsel satisfactory to the Indemnitor, and grant such authorizations or powers of attorney whose consent to the agents, representatives and selection of counsel of the Indemnitor as the Indemnitor may reasonably consider desirable in connection with the defense of any such claimshall not be unreasonably withheld or delayed.

Notice and Right to Defend. Promptly upon receipt (a) Should any claim or action by a third party arise after the Closing Date for which Buyer, Centene, Parent or Seller may be liable to any other party under the indemnity provisions of this Agreement, the indemnitee shall notify the indemnitor in writing and in reasonable detail as soon as practicable after the indemnitee receives notice of any claimsuch claim or action in the manner provided for the giving of notices under this Agreement, demand or assessment or provided, that failure to notify in such manner shall relieve the commencement of any suit, action or proceedings in indemnitor from liability under this Agreement with respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer or otherwise plead in such actiononly if, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except and only to the extent that that, such failure to notify the Indemnitor is not prejudiced therebyindemnitor results in the forfeiture by the indemnitor of material rights and defenses otherwise available to the indemnitor with respect to such claim. The expenses of all proceedings, contests, lawsuits, or investigations of claims with respect to such claims or actions, shall be borne by the omission indemnitor. If an indemnitor wishes to assume the defense of such Indemnitee claim or action, it shall give written notice to notify promptly the Indemnitor indemnitee within ten (10) days after notice from the indemnitee of such claim or action of its intention to assume the defense, and the indemnitor shall thereafter assume the defense of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with through counsel reasonably satisfactory to the Indemnitee. After notice from indemnitee, provided that the Indemnitor indemnitee may also participate in such defense at its own expense; (b) If the indemnitor shall not assume the defense of, or if after so assuming it shall fail to defend, any such claim or action, or such action involves a claim with (a) the indemnitee reasonably believes could be materially detrimental to or materially injure the indemnitee's reputation, customer relations or future business prospects, (b) seeks non-monetary relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages), (c) involves criminal allegations, (d) is one in which the indemnitor is also a party and joint representation would be inappropriate or there may be legal defenses available to the Indemnitee of its election so indemnitee which are different from or additional to assume those available to the defenseindemnitor, conduct or settlement thereof(e) involves a claim which, upon petition by the indemnitee, the Indemnitor will appropriate court rules that the indemnitor failed or is failing to vigorously prosecute or defend. In any action or proceeding with respect to which indemnification is being sought hereunder, the indemnitee or the indemnitor, whichever is not be liable assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party's own expense. The indemnitee may defend against any such claim or action in such manner as it may reasonably deem appropriate and the Indemnitee indemnitee may settle such claim or litigation on such terms as it may reasonably deem appropriate, and the indemnitor shall promptly reimburse the indemnitee for any the amount of all reasonable expenses, legal or other expenses subsequently and otherwise, incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable indemnitee in connection with the defense and/or settlement of such claim or action. If no settlement of such claim or action is made, the indemnitor shall satisfy any judgment rendered with respect to such claim or in such action before indemnitee is required to do so, and pay all expenses, legal or otherwise, incurred by the indemnitee in the defense against such claim or litigation. (c) An indemnitor may not, without the prior written consent of the indemnitee, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) simultaneously with the effectiveness of such settlement, compromise or consent, the indemnitor pays in full any obligation imposed on the indemnitee by such settlement, compromise or consent and obtain releases of the indemnitee in full from such third party claim and (ii) such settlement, compromise or consent does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the indemnitee or any of the indemnitee's Affiliates. (d) In the event an indemnitee shall claim a right to payment pursuant to this Agreement not involving a third party claim covered by Section 12.4(a), such indemnitee shall send written notice of such claim to the appropriate indemnitor. Such notice shall specify the basis for such claim. As promptly as possible after the indemnitee has given such notice, such indemnitee and the appropriate indemnitor shall establish the merits and amount of such claim (by mutual agreement or pursuant to the arbitration provisions herein). Except as otherwise provided in this Agreement, any indemnification of Centene or Buyer or Parent or Seller pursuant to this Article XII shall be effected by wire transfer of immediately available funds from Seller or Buyer, as the case may be, to an account(s) designated by the applicable Buyer or Seller, as the case may be, within ten (10) days after the determination thereof. Any such indemnification payments shall include interest at the Applicable Rate calculated on the basis of the actual number of days elapsed over 360, from the date any such Loss is suffered or sustained to the date of payment. All indemnification payments under this Section 12.4 shall be deemed adjustments to the Purchase Price set forth in Section 2.4.2(a) above.

Notice and Right to Defend. Promptly upon receipt Each party hereto agrees to give prompt notice to the other of notice the assertion of any claim, demand or assessment or the commencement of any suit, action or proceedings proceeding in respect of which indemnity may be sought on account hereunder, provided that the failure to give such notice to the indemnifying party shall not relieve the indemnifying party of any liability that it may have to an indemnity agreement contained in this Section, the indemnified party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer or otherwise plead in such action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except except to the extent that the Indemnitor is not indemnifying party shall have been materially prejudiced thereby, in its ability to defend the omission of such Indemnitee to notify promptly the Indemnitor of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against for which such indemnity is sought by reason of such failure. The indemnifying party shall have the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, right to assume the defensedefense of any third-party claim, conduct suit, action or settlement thereofproceeding in respect of which indemnity hereunder is sought by giving prompt notice to the indemnified party. In the event that the indemnifying party elects to assume the defense of such claim, with suit, action or proceeding, the indemnifying party shall promptly retain counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitor to the Indemnitee of its election so to assume the defense, conduct or settlement thereof, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement thereofindemnified party. The Indemnitee will cooperate with indemnified party shall have the Indemnitor right to employ its own counsel in connection with any such claim, make personnelsuit, books action or proceeding, but the fees and records relevant expenses of such counsel shall be at the expense of the indemnified party unless (i) the employment of such counsel shall have been authorized by the indemnifying party, (ii) the indemnifying party shall not have promptly retained counsel reasonably satisfactory to the claim indemnified party to take charge of the defense of such claim, suit, action or proceeding, (iii) the indemnified party shall have concluded that there may be one or more legal defenses available to the Indemnitor, and grant such authorizations or powers of attorney it which are unavailable to the agents, representatives and counsel indemnifying party or which are in conflict with the position of the Indemnitor as indemnifying party or (iv) the Indemnitor may reasonably consider desirable resolution of the matter being contested may, in connection with the reasonable judgment of the indemnified party have a material adverse effect on the indemnified party's business, in any of which events, such fees and expenses shall be borne by the indemnifying party. If an indemnifying party elects to assume the defense of any such claim, suit, action or proceeding, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party's written consent if such compromise or settlement involves anything other than the payment of monetary damages, and (b) the indemnifying party shall have no liability for any settlement or compromise by the indemnified party with any third party relating to any such claim, suit, action or proceeding effected without, to the extent and only to the extent such settlement involves any monetary damages, the prior written consent of the indemnifying party. Notwithstanding the foregoing, if an indemnified party determines that there is a reasonable possibility that any such claim, suit, action or proceeding may have an adverse effect on the indemnified party's business or the business of any of its subsidiaries or affiliates, such indemnified party may, by written notice to the indemnifying party assume the exclusive right to defend such claim, suit, action or proceeding with counsel reasonably acceptable to the indemnifying party; provided, however, that no compromise or settlement may be effected by the indemnified party without the indemnifying party's written consent to the extent and only to the extent such compromise or settlement involves monetary damages. If the indemnifying party fails to give written notice to the indemnified party of its election to assume the defense of any claim, suit, action or proceeding for which it is called upon to indemnify an indemnified party pursuant to this Article IX within thirty (30) days after the indemnified party gives notice to the indemnifying party of the commencement of such claim, suit, action or proceeding, the indemnifying party shall be bound by any determination made in any such claim, suit, action or proceeding or compromise or settlement thereof effected by the indemnified party.

Notice and Right to Defend. Promptly upon receipt (a) Should any claim or action by a third party arise after the Closing Date for which Buyer or Seller may be liable to the other under the indemnity provisions of this Agreement, the indemnitee shall notify the indemnitor in writing and in reasonable detail as soon as practicable after the indemnitee receives notice of any claimsuch claim or action in the manner provided for the giving of notices under this Agreement, demand or assessment or provided, that failure to notify in such manner shall relieve the commencement of any suit, action or proceedings in indemnitor from liability under this Agreement with respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer or otherwise plead in such actiononly if, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except and only to the extent that that, such failure to notify the Indemnitor is not prejudiced therebyindemnitor results in the forfeiture by the indemnitor of material rights and defenses otherwise available to the indemnitor with respect to such claim. The expenses of all proceedings, contests, lawsuits, or investigations of claims with respect to such claims or actions, shall be borne by the omission indemnitor. If an indemnitor wishes to assume the defense of such Indemnitee claim or action, it shall give written notice to notify promptly the Indemnitor indemnitee within ten (10) days after notice from the indemnitee of such claim or action of its intention to assume the defense, and the indemnitor shall thereafter assume the defense of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with through counsel reasonably satisfactory to the Indemnitee. After notice from indemnitee, provided that the Indemnitor indemnitee may also participate in such defense at its own expense; (b) If the indemnitor shall not assume the defense of, or if after so assuming it shall fail to defend, any such claim or action, or such action involves a claim with (a) the indemnitee reasonably believes could be materially detrimental to or materially injure the indemnitee’s reputation, customer relations or future business prospects, (b) seeks non-monetary relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages), (c) involves criminal allegations, (d) is one in which the indemnitor is also a party and joint representation would be inappropriate or there may be legal defenses available to the Indemnitee of its election so indemnitee which are different from or additional to assume those available to the defenseindemnitor, conduct or settlement thereof(e) involves a claim which, upon petition by the indemnitee, the Indemnitor will appropriate court rules that the indemnitor failed or is failing to vigorously prosecute or defend. In any action or proceeding with respect to which indemnification is being sought hereunder, the indemnitee or the indemnitor, whichever is not be liable assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party’s own expense. The indemnitee may defend against any such claim or action in such manner as it may reasonably deem appropriate and the Indemnitee indemnitee may settle such claim or litigation on such terms as it may reasonably deem appropriate, and the indemnitor shall promptly reimburse the indemnitee for any the amount of all reasonable expenses, legal or other expenses subsequently and otherwise, incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable indemnitee in connection with the defense and/or settlement of such claim or action. If no settlement of such claim or action is made, the indemnitor shall satisfy any judgment rendered with respect to such claim or in such action before indemnitee is required to do so, and pay all expenses, legal or otherwise, incurred by the indemnitee in the defense against such claim or litigation. (c) An indemnitor may not, without the prior written consent of the indemnitee, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) simultaneously with the effectiveness of such settlement, compromise or consent, the indemnitor pays in full any obligation imposed on the indemnitee by such settlement, compromise or consent and obtain releases of the indemnitee in full from such third party claim and (ii) such settlement, compromise or consent does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the indemnitee or any of the indemnitee’s Affiliates. (d) In the event an indemnitee shall claim a right to payment pursuant to this Agreement not involving a third party claim covered by Section 12.5(a), such indemnitee shall send written notice of such claim to the appropriate indemnitor. Such notice shall specify the basis for such claim. As promptly as possible after the indemnitee has given such notice, such indemnitee and the appropriate indemnitor shall establish the merits and amount of such claim (by mutual agreement or pursuant to the arbitration provisions herein). (e) Except as otherwise provided herein, any indemnification of Buyer or Seller pursuant to this Article XII shall be effected by wire transfer of immediately available funds from Seller or Buyer, as the case may be, to an account(s) designated by the applicable Buyer or Seller, as the case may be, within ten (10) days after the determination thereof. Any such indemnification payments shall include interest at the Applicable Rate calculated on the basis of the actual number of days elapsed over 360, from the date any such Loss is suffered or sustained to the date of payment. All indemnification payments under this Section 12.5 shall be deemed adjustments to the Purchase Price set forth in Section 2.4(b)(i) above.

Notice and Right to Defend. Promptly upon receipt Seller, on the one hand and Purchaser, on the other, agree to give prompt notice to the other of notice the assertion of any claim, demand or assessment or the commencement of any suit, action or proceedings proceeding in respect of which indemnity may be sought hereunder. Any failure on account the part of an indemnity agreement contained either party to this Agreement to give the notice described in this Section, Section 7.5 to the other party hereto shall relieve the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to whom such claim or answer or otherwise plead in such action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except notice was not provided of its obligations under this Section 7 only to the extent that such non-notified party has been prejudiced by the Indemnitor is lack of timely and adequate notice. This notification requirement shall not prejudiced thereby, apply to communications that are part of or that relate to a judicial or administrative proceeding in which the omission of such Indemnitee parties hereto are litigating claims against each other. The indemnifying party shall have the right and obligation to notify promptly assume the Indemnitor defense or settlement of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any third-party claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemniteein respect of which it has an obligation to provide indemnity hereunder, and such indemnity may be sought hereunder by giving prompt notice to the Indemnitee indemnifying party; PROVIDED, HOWEVER, that (a) the indemnified party shall notify at all times have the Indemnitor right, at its option and expense, to participate fully therein, and (b) if the indemnifying party does not proceed diligently to defend the claim within ten days after receipt of the commencement thereofsuch notice, the Indemnitor will be entitled to participate thereinindemnified party shall have the right, andbut not the obligation, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitor to the Indemnitee of its election so to assume the defense, conduct or settlement thereof, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable in connection with undertake the defense of any such claim for the account of and at the risk of the indemnifying party and the indemnifying party shall be bound by any defense or settlement that the indemnified party may make as to such claim. The parties shall cooperate in defending any such third-party claim, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control of the other party which are pertinent to the defense. The parties agree that the indemnified party may join the indemnifying party in any action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of the indemnity granted to such indemnified party pursuant to this Agreement.

Notice and Right to Defend. Promptly upon receipt of (a) Any party claiming it may be entitled to indemnification under this Article 8 (the "Indemnified Party") shall give prompt notice to the other party (the "Indemnifyinn Party") of any action, suit, proceeding, claim, demand or assessment or the commencement of any suit, action or proceedings in respect of (an "Action") upon which indemnity a claim for indemnification (a "Claim") under this Article 8 may be sought on account based. Such notice (a "Claim Notice") shall contain, with respect to each Claim, such facts and information as are then reasonably available, and the specific basis for indemnification hereunder. Failure to give prompt notice of an indemnity agreement contained in a Claim hereunder shall not affect the Indemnifying Party's obligations under this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer or otherwise plead in such action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except Article 8 except to the extent that the Indemnitor Indemnifying Party is not prejudiced therebyby such failure the Indemnified Party shall permit the Indemnifying Party, at the omission Indemnifying Party's option exercisable within thirty (30) days after receipt of such Indemnitee to notify promptly the Indemnitor of any such claim or action shall not relieve such Indemnitor from any liability which it may have a Claim Notice with respect to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wishClaim, to assume the defensedefense of, conduct at its own expense and by its own counsel, any such Action involving the asserted liability of the Indemnified Party as to which the Indemnifying Party shall have acknowledged its obligation to indemnify the Indemnified Party subject to the next sentence. If the Indemnifying Party shall undertake to compromise, settle or defend any such Action, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party agrees to cooperate fully with the Indemnifying Party and its counsel in the compromise or settlement thereofof, with or defense against, any such Action; provided, however, that the Indemnifying Party shall not settle any such Action without the written consent of the Indemnified Party (which such consent shall not be unreasonably withheld) unless such settlement (a) provides for no relief or remedy other than the payment of monetary damages as to which the Indemnifying Party has acknowledged its obligation to pay and (b) includes as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability in respect of such Action. Notwithstanding the Indemnifying Party's election to assume the defense of such Action, if the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnitee. After Indemnified Party to represent the Indemnifying Party within twenty (20) days after notice from the Indemnitor to the Indemnitee Indemnifying Party of the institution of such Action, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such Action, and the reasonable fees, costs and expenses of such separate counsel incurred prior to the Indemnifying Party's retention of its election so own counsel reasonably satisfactory to the Indemnified Party shall be payable by the Indemnifying Party. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume control of an Action but shall pay for the defensereasonable fees, conduct costs and expenses of the Indemnified Party's legal counsel if (i) the Action is, or relates to or arises in connection with, any criminal or Tax proceeding, action, indictment, allegation or investigation; or (ii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party, on the one hand, and the Indemnified Party on the other. If the Indemnified Party shall undertake to compromise, settle or defend any Action in accordance with the immediately preceding sentence, it shall promptly notify the Indemnifying Party of its intention to do so, and the Indemnifying Party agrees to cooperate fully with the Indemnified Party and its counsel in the compromise or settlement thereofof, or defense against, any such Action; provided, however, that the Indemnified Party shall not settle any such Action without the written consent of the Indemnifying Party, which such consent shall not be unreasonably withheld. In any event, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will Indemnified Party and its counsel shall cooperate with the Indemnitor Indemnifying Party and its counsel. The Indemnified Party shall have the right at its own expense to participate in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable in connection with the defense of any such claimAction.

Notice and Right to Defend. Promptly upon receipt of notice of (a) In the event that any claim, legal proceeding shall be instituted or any claim or demand or assessment or the commencement of any suit, action or proceedings shall be asserted by a third party in respect of which indemnity may be sought on account by any party hereto (the "Indemnitee") pursuant to the provisions of an indemnity agreement contained in this SectionSections 11.1, the Indemnitee shall with reasonable promptness after obtaining knowledge of such proceeding, claim, or demand give written notice thereof to the any other party seeking from which indemnification is being sought pursuant to Section 11.1 (the “"Indemnifying Party"), who shall then have the right at the option and expense of the Indemnifying Party to be represented by counsel of the Indemnifying Party's choice in connection with such matter, which counsel shall be reasonably satisfactory to the Indemnitee”) will notify, within sufficient time and to respond to such claim or answer defend against, negotiate, settle, or otherwise plead in deal with any such actionproceeding, claim, or demand; provided, however, that without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld or delayed), the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except Indemnifying Party shall not consent to the extent that the Indemnitor is not prejudiced thereby, the omission entry of such Indemnitee any judgment in or agree to notify promptly the Indemnitor any settlement of any such claim or action shall not relieve such Indemnitor from any liability which it matter; and provided further that the Indemnitee may have retain counsel at the Indemnitee's own expense to such represent the Indemnitee in connection therewithwith any such proceeding, on account claim, or demand. If the Indemnitee refuses with respect to any such matter to consent to any monetary aspect of any judgment or settlement favored by the Indemnifying Party and such matter is later settled for or adjudicated in an amount in excess of the indemnity agreements contained in this Sectionsettlement or judgment amount initially favored by the Indemnifying Party, the Indemnitee shall be liable to the Indemnifying Party for such excess amount. In case Failure by the Indemnifying Party to notify the Indemnitee of the election by the Indemnifying Party to defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand or assessment with respect to which indemnity is sought within 30 days after notice thereof shall have been given by the Indemnitee shall be asserted deemed a waiver by the Indemnifying Party of the Indemnifying Party's right to defend against, negotiate, settle or a suitotherwise deal with any such matter; provided, action or proceeding commenced against however, that the Indemnitee may assert the Indemnitee's right to defend against, settle or otherwise deal with any such matter at any time if the Indemnifying Party is financially unable to defend against, settle or otherwise deal with such matter. Such assertion may not be made absent consultation with and written notice to the Indemnifying Party. If the Indemnifying Party assumes the defense, negotiation, settlement or disposition of any such proceeding, claim or demand, the Indemnifying Party shall take or cause to be taken all steps the Indemnifying Party in good xxxxx xxxxx appropriate, after consultation with the Indemnitee, to defend, negotiate, settle or deal with any such proceeding, claim or demand, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will in all events be entitled to participate therein, and, indemnity with respect to such matter as and to the extent provided in this Article XI. (b) In the event that it may wish, to assume the defense, conduct or settlement thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitor to the Indemnitee of its election so to assume the defense, conduct or settlement thereof, the Indemnitor will not be liable to the Indemnitee for any legal proceeding shall be instituted or other expenses subsequently incurred any claim or demand shall be asserted by a third party in respect of which indemnity may be sought by the Indemnitee and in connection with the defenseevent that the Indemnifying Party does not elect to defend against, conduct negotiate, settle or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection otherwise deal with any such claimproceeding, make personnelclaim or demand with respect to which indemnity is sought or does not take the steps described in the last sentence of paragraph (a) above, books the Indemnitee may defend against, settle, or otherwise deal with any such proceeding, claim or demand in such manner as it in good xxxxx xxxxx appropriate, and records relevant the Indemnifying Party shall be liable, as and to the claim available extent provided in this Article XI, for indemnification with respect to such matter including, without limitation, the Indemnitor, and grant cost of such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable defense. (c) The parties hereto will cooperate fully with each other in connection with the defense or settlement of any such claimproceeding, claim or demand by a third party with respect to which a claim for indemnification is made hereunder.

Notice and Right to Defend. Promptly upon receipt of In the event Xxxxxx receives notice of any claim, demand or assessment or otherwise becomes aware that the commencement of any suit, action or proceedings in respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party New Lender is seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such make a claim or answer or otherwise plead in such action, exercise its rights under the party from whom indemnification is sought Indemnification (the “Indemnitor”an "Indemnification Claim"), Xxxxxx shall immediately give notice thereof to Heublein. Unless Xxxxxx acknowledges and agrees in a writing thereof. Except reasonably acceptable to Heublein that Heublein has no liability or obligation, under Section 9.1 or otherwise, with respect to the extent that matter giving rise to the Indemnitor is not prejudiced therebyIndemnification Claim, then Heublein shall have the omission right to assume and control the defense of such Indemnitee Indemnification Claim and otherwise deal with the New Lender with respect to notify promptly all aspects of the Indemnitor Indemnification Claim, including without limitation the right to settle such Indemnification Claim on such terms as Heublein may determine in its sole judgment; provided, however, that if such settlement does not include an unconditional release of any Xxxxxx with respect to the matter giving rise to the Indemnification Claim, such claim or action settlement shall require the written consent of Xxxxxx, which consent shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Sectionbe unreasonably delayed or withheld. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, If Heublein elects to assume the defensedefense of such Indemnification Claim, conduct or settlement thereof, with counsel reasonably satisfactory (i) notwithstanding anything to the Indemnitee. After notice from the Indemnitor contrary contained herein, Heublein shall not be required to the Indemnitee pay or otherwise indemnify Xxxxxx against any attorneys' fees or other expenses incurred on behalf of its Xxxxxx in connection with such Indemnification Claim following Heublein's election so to assume the defensedefense of such Indemnification Claim, conduct (ii) Xxxxxx shall fully cooperate as reasonably requested by Heublein in the defense or settlement thereofof such Indemnification Claim, the Indemnitor will not be liable (iii) Heublein shall keep Xxxxxx informed of all material developments and events relating to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the IndemnitorIndemnification Claim, and grant such authorizations or powers of attorney (iv) Xxxxxx shall have the right to the agentsparticipate, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable at its own expense, in connection with the defense of such Indemnification Claim. In no event will Heublein be liable for any settlement or admission of liability with respect to such claimIndemnification Claim without its prior written consent.

Notice and Right to Defend. Promptly upon receipt of notice of (a) In the event that any claim, legal proceeding shall be instituted or any claim or demand or assessment or the commencement of any suit, action or proceedings shall be asserted by a third party in respect of which indemnity may be sought on account by any party hereto (the "Indemnitee") pursuant to the provisions of an indemnity agreement contained in this SectionSections 11.1, the Indemnitee shall with reasonable promptness after obtaining knowledge of such proceeding, claim, or demand give written notice thereof to the any other party seeking from which indemnification is being sought pursuant to Section 11.1 (the “"Indemnifying Party"), who shall then have the right at the option and expense of the Indemnifying Party to be represented by counsel of the Indemnifying Party's choice in connection with such matter, which counsel shall be reasonably satisfactory to the Indemnitee”) will notify, within sufficient time and to respond to such claim or answer defend against, negotiate, settle, or otherwise plead in deal with any such actionproceeding, claim, or demand; provided, however, that without the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld or delayed), the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except Indemnifying Party shall not consent to the extent that the Indemnitor is not prejudiced thereby, the omission entry of such Indemnitee any judgment in or agree to notify promptly the Indemnitor any settlement of any such claim or action shall not relieve such Indemnitor from any liability which it matter; and provided further that the Indemnitee may have retain counsel at the Indemnitee's own expense to such represent the Indemnitee in connection therewithwith any such proceeding, on account claim, or demand. If the Indemnitee refuses with respect to any such matter to consent to any monetary aspect of any judgment or settlement favored by the Indemnifying Party and such matter is later settled for or adjudicated in an amount in excess of the indemnity agreements contained in this Sectionsettlement or judgment amount initially favored by the Indemnifying Party, the Indemnitee shall be liable to the Indemnifying Party for such excess amount. In case Failure by the Indemnifying Party to notify the Indemnitee of the election by the Indemnifying Party to defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand or assessment with respect to which indemnity is sought within thirty (30) days after notice thereof shall have been given by the Indemnitee shall be asserted deemed a waiver by the Indemnifying Party of the Indemnifying Party's right to defend against, negotiate, settle or a suitotherwise deal with any such matter; provided, action or proceeding commenced against however, that the Indemnitee may assert the Indemnitee's right to defend against, settle or otherwise deal with any such matter at any time if the Indemnifying Party is financially unable to defend against, settle or otherwise deal with such matter. Such assertion may not be made absent consultation with and written notice to the Indemnifying Party. If the Indemnifying Party assumes the defense, negotiation, settlement or disposition of any such proceeding, claim or demand, the Indemnifying Party shall take or cause to be taken all steps the Indemnifying Party in good xxxxx xxxxx appropriate, after consultation with the Indemnitee, to defend, negotiate, settle or deal with any such proceeding, claim or demand, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will in all events be entitled to participate therein, and, indemnity with respect to such matter as and to the extent provided in this Article XI. (b) In the event that it may wish, to assume the defense, conduct or settlement thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitor to the Indemnitee of its election so to assume the defense, conduct or settlement thereof, the Indemnitor will not be liable to the Indemnitee for any legal proceeding shall be instituted or other expenses subsequently incurred any claim or demand shall be asserted by a third party in respect of which indemnity may be sought by the Indemnitee and in connection with the defenseevent that the Indemnifying Party does not elect to defend against, conduct negotiate, settle or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection otherwise deal with any such claimproceeding, make personnelclaim or demand with respect to which indemnity is sought or does not take the steps described in the last sentence of paragraph (a) above, books the Indemnitee may defend against, settle, or otherwise deal with any such proceeding, claim or demand in such manner as it in good xxxxx xxxxx appropriate, and records relevant the Indemnifying Party shall be liable, as and to the claim available extent provided in this Article XI, for indemnification with respect to such matter including, without limitation, the Indemnitor, cost of such defense (including reasonable attorney's fees and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable expenses). (c) The parties hereto will cooperate fully with each other in connection with the defense or settlement of any such claimproceeding, claim or demand by a third party with respect to which a claim for indemnification is made hereunder.

Notice and Right to Defend. Promptly upon receipt (a) Should any claim or action by a third party arise after the Closing Date for which a Party may be liable to another Party under the indemnity provisions of this Agreement, the indemnitee shall notify the indemnitor in writing and in reasonable detail as soon as practicable after the indemnitee receives notice of any claimsuch claim or action in the manner provided for the giving of notices under this Agreement, demand or assessment or provided, that failure to notify in such manner shall relieve the commencement of any suit, action or proceedings in indemnitor from Liability under this Agreement with respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer or otherwise plead in such actiononly if, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except and only to the extent that that, such failure to notify the Indemnitor is not prejudiced therebyindemnitor results in the forfeiture by the indemnitor of material rights and defenses otherwise available to the indemnitor with respect to such claim. The expenses of all proceedings, contests, lawsuits, or investigations of claims with respect to such claims or actions, shall be borne by the omission indemnitor. If an indemnitor wishes to assume the defense of such Indemnitee claim or action, it shall give written notice to notify promptly the Indemnitor indemnitee within ten (10) days after notice from the indemnitee of such claim or action of its intention to assume the defense, and the indemnitor shall thereafter assume the defense of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with Liability through counsel reasonably satisfactory to the Indemnitee. After notice from indemnitee, provided that the Indemnitor indemnitee may also participate in such defense at its own expense; (b) If the indemnitor shall not assume the defense of, or if after so assuming it shall fail to defend, any such claim or action, or such action involves a claim with (i) the indemnitee reasonably believes could be materially detrimental to or materially injure the indemnitee’s reputation, customer relations or future business prospects, (ii) seeks non-monetary relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages), (iii) involves criminal allegations, (iv) is one in which the indemnitor is also a party and joint representation would be inappropriate or there may be legal defenses available to the Indemnitee indemnitee which are different from or additional to those available to the indemnitor, or (v) involves a claim which, upon petition by the indemnitee, the appropriate court rules that the indemnitor failed or is failing to vigorously prosecute or defend, then the indemnitee shall have the right to defend such claim using counsel of its election so choice and shall be entitled to assume the defense, conduct indemnification for all costs and expenses of defense in addition to other items herein. In any action or settlement thereofproceeding with respect to which indemnification is being sought hereunder, the Indemnitor will indemnitee or the indemnitor, whichever is not be liable assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party’s own expense. The indemnitee may defend against any such claim or action in such manner as it may reasonably deem appropriate and the Indemnitee indemnitee may settle such claim or litigation on such terms as it may reasonably deem appropriate, and the indemnitor shall promptly reimburse the indemnitee for any the amount of all reasonable expenses, legal or other expenses subsequently and otherwise, incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable indemnitee in connection with the defense and/or settlement of such claim or action. If no settlement of such claim or action is made, the indemnitor shall satisfy any judgment rendered with respect to such claim or in such action before indemnitee is required to do so, and pay all expenses, legal or otherwise, incurred by the indemnitee in the defense against such claim or litigation. (c) An indemnitor may not, without the prior written consent of the indemnitee, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) simultaneously with the effectiveness of such claimsettlement, compromise or consent, the indemnitor pays in full any obligation imposed on the indemnitee by such settlement, compromise or consent and obtain releases of the indemnitee in full from such third party claim and (ii) such settlement, compromise or consent does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the indemnitee or any of the indemnitee’s Affiliates. (d) In the event an indemnitee shall claim a right to payment pursuant to this Agreement not involving a third party claim covered by Section 10.4(a), such indemnitee shall send written notice of such claim to the appropriate indemnitor. Such notice shall specify the basis for such claim in reasonable detail. As promptly as possible after the indemnitee has given such notice, such indemnitee and the appropriate indemnitor shall establish the merits and amount of such claim (by mutual agreement or pursuant to the arbitration provisions herein). (e) Except as otherwise provided herein, any indemnification of a Party pursuant to this Article X shall be effected by wire transfer of immediately available funds from the indemnifying Party, to an account(s) designated by the indemnified Party, within ten (10) days after the determination thereof. Any such indemnification payments shall include interest at the Applicable Rate calculated on the basis of the actual number of days elapsed over 360, from the date any such Loss is suffered or sustained to the date of payment. Any amounts owing from Seller pursuant to this Article X shall first be made to the extent possible from the Escrow Funds in the Escrow Account (as defined in the Escrow Agreement) and any deficiency thereafter shall be made directly by Seller in accordance with the terms of this Section 10.4(e). All indemnification payments under this Article X shall be deemed adjustments to the Purchase Price set forth in Section 2.4. (f) The amount of any Losses for which indemnification is provided under this Article X shall be net of any amounts actually recovered by the indemnified party under insurance policies with respect to such Losses.

Notice and Right to Defend. Promptly upon receipt after becoming aware of notice of any claim, demand or assessment or the commencement of any suit, action or proceedings in respect of a third party claim as to which indemnity may be sought on account of an indemnity agreement contained in pursuant to this Section‎Article V, the party or parties seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim notify the other party or answer or otherwise plead in such action, the party from whom indemnification is sought parties (the “Indemnitor”), ) of such claim. The Indemnitee’s failure or delay in writing thereof. Except providing the notice will not relieve the Indemnitor of its obligations under this ‎Article V except to the extent that the Indemnitor is not materially prejudiced thereby, the omission of such Indemnitee to notify promptly as a result thereof. Unless the Indemnitor of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and notifies the Indemnitee shall notify that the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, elects to assume the defense, conduct defense or the settlement thereof, with counsel of such claim (such notice to be given as promptly as reasonably satisfactory possible in view of the necessity to arrange such defense and in no event later than ten (10) days following the notice to the Indemnitee. After notice from the Indemnitor to Indemnitor), the Indemnitee of its election so will have the exclusive right to assume the defensedefend, conduct settle, or settlement thereof, the Indemnitor pay such claim. The Indemnitee will not be liable to the Indemnitee Indemnitor for any legal or other expenses subsequently expense incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such defense or settlement undertaken by the Indemnitor. If the Indemnitor assumes the defense, the Indemnitor will not agree to any settlement, compromise or discharge of a third-party claim without the Indemnitee’s prior written consent (not to be unreasonably withheld). If the Indemnitor has assumed the defense or settlement of such claim, make personnelthe Indemnitee will have the right to employ its own counsel, books and records relevant at its own expense. If, in good faith, the Indemnitee concludes that there are specific defenses available to the claim it that are different from or additional to those available to the Indemnitor, and grant that such authorizations or powers of attorney claim may have a material adverse effect upon the Indemnitee with respect to matters beyond the agents, representatives and counsel scope of the Indemnitor as indemnities under this ‎Article V, a court of competent jurisdiction rules that the Indemnitor may has failed or is failing to prosecute or defend such claim, the claim seeks damages other than monetary damages, or the claim would reasonably consider desirable in connection with be expected to materially and adversely impact a material relationship between the Purchaser and any customer or supplier, the Indemnitee will have the right to direct the defense of any such claimclaim at the expense of the Indemnitor (but subject to the limitations in this ‎Article V). The defending party in any event will (a) settle or defend such claim with reasonable diligence; (b) cooperate with the other parties in the investigation and analysis of such claim or proceeding; (c) afford the other parties reasonable access to such relevant information as it may have in its possession; and (d) keep the other parties reasonably informed regarding such claim and any related proceedings.

Notice and Right to Defend. Promptly upon receipt Seller, on the one hand and Purchaser, on the other, agree to give prompt notice to the other of notice the assertion of any claim, demand or assessment or the commencement of any suit, action or proceedings proceeding in respect of which indemnity may be sought hereunder. Any failure on account the part of an indemnity agreement contained either party to this Agreement to give the notice described in this Section, Section 8.5 to the other party hereto shall relieve the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to whom such claim or answer or otherwise plead in such action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except notice was not provided of its obligations under this Section 8 only to the extent that such non-notified party has been prejudiced by the Indemnitor is lack of timely and adequate notice. This notification requirement shall not prejudiced thereby, apply to communications that are part of or that relate to a judicial or administrative proceeding in which the omission of such Indemnitee parties hereto are litigating claims against each other. The indemnifying party shall have the right and obligation to notify promptly assume the Indemnitor defense or settlement of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any third-party claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemniteein respect of which it has an obligation to provide indemnity hereunder, and such indemnity may be sought hereunder by giving prompt notice to the Indemnitee indemnifying party; PROVIDED, HOWEVER, that (a) the indemnified party shall notify at all times have the Indemnitor right, at its option and expense, to participate fully therein, and (b) if the indemnifying party does not proceed diligently to defend the claim within ten days after receipt of the commencement thereofsuch notice, the Indemnitor will be entitled to participate thereinindemnified party shall have the right, andbut not the obligation, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Indemnitor to the Indemnitee of its election so to assume the defense, conduct or settlement thereof, the Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable in connection with undertake the defense of any such claim for the account of and at the risk of the indemnifying party and the indemnifying party shall be bound by any defense or settlement that the indemnified party may make as to such claim. The parties shall cooperate in defending any such third-party claim, and the defending party shall have reasonable access to the books and records, and personnel in the possession or control of the other party which are pertinent to the defense. The parties agree that the indemnified party may join the indemnifying party in any action, claim or proceeding brought by a third party, as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of the indemnity granted to such indemnified party pursuant to this Agreement.

Notice and Right to Defend. Promptly upon receipt after becoming aware of notice of any claim, demand or assessment or the commencement of any suit, action or proceedings in respect of a third party claim as to which indemnity may be sought on account of an indemnity agreement contained in pursuant to this SectionArticle V, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer or otherwise plead in such action, notify the other party from whom indemnification is sought (the “Indemnitor”), ) of such claim. The Indemnitee’s failure or delay in writing thereof. Except providing the notice will not relieve the Indemnitor of its obligations under this Article V except to the extent that the Indemnitor is not materially prejudiced thereby, the omission of such Indemnitee to notify promptly as a result thereof. Unless the Indemnitor of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and notifies the Indemnitee shall notify that the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, elects to assume the defense, conduct defense or the settlement thereof, with counsel of such claim (such notice to be given as promptly as reasonably satisfactory possible in view of the necessity to arrange such defense and in no event later than ten (10) days following the notice to the Indemnitee. After notice from the Indemnitor to Indemnitor), the Indemnitee of its election so will have the exclusive right to assume the defensedefend, conduct settle, or settlement thereof, the Indemnitor pay such claim. The Indemnitee will not be liable to the Indemnitee Indemnitor for any legal or other expenses subsequently expense incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such defense or settlement undertaken by the Indemnitor. If the Indemnitor assumes the defense, the Indemnitor will not agree to any settlement, compromise or discharge of a third-party claim without the Indemnitee’s prior written consent (not to be unreasonably withheld). If the Indemnitor has assumed the defense or settlement of such claim, make personnelthe Indemnitee will have the right to employ its own counsel, books and records relevant at its own expense. If, in good faith, the Indemnitee concludes that there are specific defenses available to the claim it that are different from or additional to those available to the Indemnitor, and grant that such authorizations or powers of attorney claim may have an adverse effect upon the Indemnitee with respect to matters beyond the agents, representatives and counsel scope of the Indemnitor as indemnities under this Article V, the Indemnitor may reasonably consider desirable in connection with has failed or is failing to diligently prosecute or defend such claim, the claim relates to Taxes, criminal or a regulatory action or the claim seeks damages other than monetary damages, the Indemnitee will have the right to direct the defense of any such claimclaim at the expense of the Indemnitor (but subject to the limitations in this Article V). The defending party in any event will (a) settle or defend such claim with reasonable diligence, (b) cooperate with the other parties in the investigation and analysis of such claim or proceeding, (c) afford the other parties reasonable access to such relevant information as it may have in its possession, and (d) keep the other parties reasonably informed regarding such claim and any related proceedings.

Notice and Right to Defend. Promptly upon receipt 10.5.1 Should any claim or action by a third party arise after the Closing Date for which a Party may be liable to another Party under the indemnity provisions of this Agreement, the indemnitee shall notify the indemnitor in writing and in reasonable detail as soon as practicable after the indemnitee receives notice of any claimsuch claim or action in the manner provided for the giving of notices under this Agreement, demand or assessment or provided, that failure to notify in such manner shall relieve the commencement of any suit, action or proceedings in indemnitor from Liability under this Agreement with respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer or otherwise plead in such actiononly if, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except and only to the extent that that, such failure to notify the Indemnitor is not prejudiced therebyindemnitor results in the forfeiture by the indemnitor of material rights and defenses otherwise available to the indemnitor with respect to such claim. The expenses of all proceedings, contests, lawsuits, or investigations of claims with respect to such claims or actions, shall be borne by the omission indemnitor. If an indemnitor wishes to assume the defense of such Indemnitee claim or action, it shall give written notice to notify promptly the Indemnitor indemnitee within ten (10) days after notice from the indemnitee of such claim or action of its intention to assume the defense, and the indemnitor shall thereafter assume the defense of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with Liability through counsel reasonably satisfactory to the Indemnitee. After notice from indemnitee, provided that the Indemnitor indemnitee may also participate in such defense at its own expense; 10.5.2 If the indemnitor shall not assume the defense of, or if after so assuming it shall fail to defend, any such claim or action, or such action involves a claim which (a) the indemnitee reasonably believes could be materially detrimental to or materially injure the indemnitee’s reputation, customer relations or future business prospects, (b) seeks non-monetary relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages), (c) involves criminal allegations, (d) is one in which the indemnitor is also a party and joint representation would be inappropriate or there may be legal defenses available to the Indemnitee of its election so indemnitee which are different from or additional to assume those available to the defenseindemnitor, conduct or settlement thereof(e) involves a claim which, upon petition by the indemnitee, the Indemnitor will appropriate court rules that the indemnitor failed or is failing to vigorously prosecute or defend, then the indemnitee shall have the sole right to defend such claim or action. In any action or proceeding with respect to which indemnification is being sought hereunder, the indemnitee or the indemnitor, whichever is not be liable assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party’s own expense. The indemnitee may defend against any such claim or action in such manner as it may reasonably deem appropriate and the Indemnitee indemnitee may settle such claim or litigation on such terms as it may reasonably deem appropriate, and the indemnitor shall promptly reimburse the indemnitee for any the amount of all reasonable expenses, legal or other expenses subsequently and otherwise, incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable indemnitee in connection with the defense and/or settlement of such claim or action. If no settlement of such claim or action is made, the indemnitor shall satisfy any judgment rendered with respect to such claim or in such action before indemnitee is required to do so, and pay all expenses, legal or otherwise, incurred by the indemnitee in the defense against such claim or litigation. 10.5.3 An indemnitor may not, without the prior written consent of the indemnitee, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) simultaneously with the effectiveness of such settlement, compromise or consent, the indemnitor pays in full any obligation imposed on the indemnitee by such settlement, compromise or consent and obtain releases of the indemnitee in full from such third party claim and (ii) such settlement, compromise or consent does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the indemnitee or any of the indemnitee’s Affiliates. 10.5.4 In the event an indemnitee shall claim a right to payment pursuant to this Agreement not involving a third party claim covered by Section 10.5.1, such indemnitee shall send written notice of such claim to the appropriate indemnitor. Such notice shall specify the basis for such claim. As promptly as possible after the indemnitee has given such notice, such indemnitee and the appropriate indemnitor shall establish the merits and amount of such claim (by mutual agreement or pursuant to the arbitration provisions herein). 10.5.5 Except as otherwise provided herein, any indemnification of a Party pursuant to this Article X shall be effected by wire transfer of immediately available funds from the indemnifying Party, to an account(s) designated by the indemnified Party, within ten (10) days after the final determination thereof. Any such indemnification payments shall include interest at the Applicable Rate calculated on the basis of the actual number of days elapsed over 360, from the date of such final determination to the date of payment. Any amounts owing from Seller pursuant to this Article X shall be made from the Escrow Funds (as defined in the Escrow Agreement) in the Escrow Account (as defined in the Escrow Agreement). All indemnification payments under this Article X shall be deemed adjustments to the Purchase Price set forth in Section 2.1.

Notice and Right to Defend. Promptly upon receipt (a) Should any claim or action by a third party arise after the Closing for which Buyer or Seller may be liable to the other under the indemnity provisions of this Agreement, the indemnitee shall notify the indemnitor in writing and in reasonable detail as soon as practicable after the indemnitee receives notice of any claim, demand or assessment or the commencement of any suit, action or proceedings in respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer action in the manner provided for the giving of notices under this Agreement. The expenses of all proceedings, contests, lawsuits, or otherwise plead in investigations of claims with respect to such claims or actions, shall be borne by the indemnitor. If an indemnitor wishes to assume the defense of such claim or action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except it shall give written notice to the extent that indemnitee within ten (10) days after notice from the Indemnitor is not prejudiced thereby, the omission indemnitee of such Indemnitee claim or action of its intention to notify promptly assume the Indemnitor defense, and the indemnitor shall thereafter assume the defense of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with through counsel reasonably satisfactory to the Indemnitee. After notice from indemnitee, provided that the Indemnitor to indemnitee may also participate in such defense at its own expense. (b) If the Indemnitee of its election so to indemnitor shall not assume the defensedefense of, conduct or settlement thereofif after so assuming it shall fail to defend, any such claim or action, the Indemnitor will not be liable to indemnitee may defend against any such claim or action in such manner as it may reasonably deem appropriate and the Indemnitee indemnitee may settle such claim or litigation on such terms as it may reasonably deem appropriate, and the indemnitor shall promptly reimburse the indemnitee for any the amount of all reasonable expenses, legal or other expenses subsequently and otherwise, incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable indemnitee in connection with the defense and/or settlement of such claim or action. If no settlement of such claim or action is made, the indemnitor shall satisfy any judgment rendered with respect to such claimclaim or in such action before indemnitee is required to do so, and pay all expenses, legal or otherwise, incurred by the indemnitee in the defense against such claim or litigation.

Notice and Right to Defend. Promptly upon receipt of In the event Xxxxxx receives notice of any claim, demand or assessment or otherwise becomes aware that the commencement of any suit, action or proceedings in respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party New Lender is seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such make a claim or answer or otherwise plead in such action, exercise its rights under the party from whom indemnification is sought Hazardous Waste Indemnification (the “Indemnitor”a "Claim"), Xxxxxx shall immediately give notice thereof to Heublein. Unless Xxxxxx acknowledges and agrees in a writing thereof. Except reasonably acceptable to Heublein that Heublein has no liability or obligation, under Section 6.1 or otherwise, with respect to the extent that matter giving rise to the Indemnitor is not prejudiced therebyClaim, then Heublein shall have the omission right to assume and control the defense of such Indemnitee Claim and otherwise deal with the New Lender with respect to notify promptly all aspects of the Indemnitor Claim, including without limitation the right to settle such Claim on such terms as Heublein may determine in its sole judgment; provided, however, that if such settlement does not include an unconditional release of any Xxxxxx with respect to the matter giving rise to the Claim, such claim or action settlement shall require the written consent of Xxxxxx, which consent shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Sectionbe unreasonably delayed or withheld. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the Indemnitee, and the Indemnitee shall notify the Indemnitor of the commencement thereof, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, If Heublein elects to assume the defensedefense of such Claim, conduct or settlement thereof, with counsel reasonably satisfactory (i) notwithstanding anything to the Indemnitee. After notice from the Indemnitor contrary contained herein, Heublein shall not be required to the Indemnitee pay or otherwise indemnify Xxxxxx against any attorneys' fees or other expenses incurred on behalf of its Xxxxxx in connection with such Claim following Heublein's election so to assume the defensedefense of such Claim, conduct (ii) Xxxxxx shall fully cooperate as reasonably requested by Heublein in the defense or settlement thereofof such Claim, the Indemnitor will not be liable (iii) Heublein shall keep Xxxxxx informed of all material developments and events relating to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense, conduct or settlement thereof. The Indemnitee will cooperate with the Indemnitor in connection with any such claim, make personnel, books and records relevant to the claim available to the IndemnitorClaim, and grant such authorizations or powers of attorney (iv) Xxxxxx shall have the right to the agentsparticipate, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable at its own expense, in connection with the defense of such Claim. In no event will Heublein be liable for any settlement or admission of liability with respect to such claimClaim without its prior written consent.

Notice and Right to Defend. Promptly upon receipt of If any claim arises with respect to which Buyer or Seller may be liable under paragraphs 10.1.1 or 10.1.2, the indemnitee shall notify the indemnitor within a reasonable time after the indemnitee receives written notice of any claimsuch Claim, demand and shall give the indemnitor a reasonable opportunity to settle or assessment defend the Claim; provided, however, that the indemnitee's failure to give such notice or the commencement of any suit, action or proceedings in respect of which indemnity may be sought on account of an indemnity agreement contained in this Section, the party seeking indemnification (the “Indemnitee”) will notify, within sufficient time to respond to such claim or answer opportunity shall not impair or otherwise plead in affect the indemnitor's obligation to indemnify against such action, the party from whom indemnification is sought (the “Indemnitor”), in writing thereof. Except Claim except to the extent that the Indemnitor is not prejudiced therebyindemnitor demonstrates actual damage caused by such failure; and provided further that the indemnitee may commence to settle or defend the Claim as circumstances warrant, but any settlement shall require the omission prior written consent of the indemnitor. The expenses of all proceedings, contests or lawsuits with respect to Claims shall be borne by the indemnitor. If an indemnitor wishes to assume the defense of a Claim, it shall give written notice to the indemnitee within five (5) days after notice from the indemnitee of such Indemnitee to notify promptly the Indemnitor of any such claim or action shall not relieve such Indemnitor from any liability which it may have to such Indemnitee in connection therewith, on account of the indemnity agreements contained in this Section. In case any claim, demand or assessment shall be asserted or a suit, action or proceeding commenced against the IndemniteeClaim, and the Indemnitee indemnitor shall notify thereafter defend the Indemnitor of the commencement thereofClaim, the Indemnitor will be entitled to participate therein, and, to the extent that it may wish, to assume the defense, conduct or settlement thereof, with employing counsel reasonably satisfactory to the Indemniteeindemnitee, provided that the indemnitee may thereafter participate in the defense at its own expense. After notice from If the Indemnitor indemnitor does not assume the defense of, or if after so assuming it fails to defend, any such Claim, the Indemnitee indemnitee may continue to defend the Claim in such manner as it may reasonably deem appropriate, and the indemnitee may settle such Claim on such terms as it may reasonably deem appropriate. The indemnitor shall promptly pay or reimburse the indemnitee for all reasonable expenses, legal and otherwise, and all amounts paid in settlement of its election so to assume or in satisfaction of judgments on Claims as such costs and amounts are incurred by the indemnitee in the defense, conduct appeal, settlement or satisfaction of Claims. If no settlement thereofof such a Claim is made, the Indemnitor will not be liable indemnitor shall satisfy any judgment rendered with respect to it before the Indemnitee for indemnitee is required to do so. If a judgment is rendered against the indemnitee on any legal Claim, or other expenses subsequently incurred by any lien attaches to any of the Indemnitee assets of any indemnitee, the indemnitor shall immediately upon such entry or attachment pay such judgment in connection with full or discharge such lien unless, at the defenseexpense and direction of the indemnitor, conduct an appeal is taken under which the execution of the judgment or settlement thereofsatisfaction of the lien is stayed. The Indemnitee will cooperate with the Indemnitor If and when a final judgment is rendered in connection with any such claimaction, make personnel, books and records relevant the indemnitor shall forthwith pay such judgment or discharge such lien before any indemnitee is compelled to the claim available to the Indemnitor, and grant such authorizations or powers of attorney to the agents, representatives and counsel of the Indemnitor as the Indemnitor may reasonably consider desirable in connection with the defense of any such claimdo so.