Common use of Procedure and Payment Clause in Contracts

Procedure and Payment. (a) The person seeking indemnification under Section 10.1, and 10.2 (the "Indemnified Party") agrees to give prompt notice to the Person against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. (b) The Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.3, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith.

Procedure and Payment. (a1) The person seeking indemnification under Section 10.14.A, and 10.2 4.B (the "Indemnified Party") agrees to give prompt notice to the Person against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. (b2) The Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses Damages that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c3) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.34.C, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d4) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith.

Procedure and Payment. (a1) The person seeking indemnification under Section 10.17.A, and 10.2 7.B (the "Indemnified Party") agrees to give prompt notice to the Person against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. (b2) The Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Indemnifying Party has given notice of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses Damages that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c3) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.37.C, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d4) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith.

Procedure and Payment. (a) The person seeking indemnification 1. Any Person entitled to any indemnification, reimbursement or other payment under Section 10.1, this Agreement with respect to the amount of any Adjustment that has become immediately due and 10.2 payable (the "Indemnified Party") agrees to give prompt notice to shall notify in writing the Person against whom indemnity such indemnification, reimbursement or other payment is sought (the "Indemnifying Party") of its right to and the assertion amount of any claimsuch indemnification, reimbursement or other payment; provided, however, that the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability and/or obligation which it may have to an Indemnified Party on account of its obligations hereunderthe provisions contained in this Agreement, except to the extent and in no event shall such failure shall have materially and adversely prejudiced relieve the Indemnifying Party from any other liability or obligation which it may have to such Indemnified Party. (b) The . Except as otherwise provided in this Agreement, the Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory make such indemnity payment, reimbursement or other payment to the Indemnified Party so long within [ten] days of the receipt of the written notice specified in the preceding sentence. 2. Any indemnity payment, reimbursement or other payment required to be made pursuant to this Agreement by an Indemnifying Party to an Indemnified Party shall be made by wire transfer of immediately available funds to such bank and/or other account of the Indemnified Party as (i) from time to time the Indemnified Party shall have directed the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses that writing, or in such other manner as the Indemnified Party may suffer resulting fromdirect in writing. 3. Any indemnity payment, arising out of, relating to, reimbursement or caused other payment required to be made by the Third Party Claim, (ii) the an Indemnifying Party provides pursuant to this Agreement shall bear interest, from the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations date such payment is due under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim Agreement until payment in full is not, in the good faith judgment of received by the Indemnified Party, likely at [a rate per annum equal at all times to establish a precedential custom or practice materially adverse to 4% per annum above the continuing business interests Base Rate then in effect of the Indemnified Party and (v) Person obligated to make such payment]. In the Indemnifying Party conducts event that the defense of rate provided for in the Third Party Claim actively and diligently. (c) So long as preceding sentence exceeds the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.3maximum rate allowed by applicable law, the Indemnified Party maximum legal interest rate shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyapply. (d) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith.

Procedure and Payment. (a) The person seeking indemnification under Section 10.1, and 10.2 (the "Indemnified Party") agrees to give prompt notice to the Person against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. (b) The Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice 44 <PAGE> of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.3, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith.. 10.4

Procedure and Payment. (a1) The person seeking indemnification under Section 10.17.A, and 10.2 7.B (the "Indemnified Party") agrees to give prompt notice to the Person against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. (b2) The Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Indemnifying Party has given notice of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses Damages that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c3) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.37.C, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. . 11 <PAGE> (d4) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith. D. Calculation of Damages. (1) The amount of any Damages payable under Section 7.A and 7.B by the Indemnifying Party shall be net of any amounts recovered by the Indemnified Party under applicable insurance policies and the Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance policies. (2) If the Indemnified Party receives an amount under insurance coverage or from a third party with respect to Damages at any time subsequent to any indemnification provided by the Indemnifying Party pursuant to Section 7.A and 7.B, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount received by such Indemnified Party, but net of any expenses incurred by such Indemnified Party in collecting such amount. (3) In no event shall either Buyers or Sellers be liable to the other party for any consequential damages or lost profits in excess of $750,000. 8.

Procedure and Payment. (a1) The person seeking indemnification under Section 10.14.A, and 10.2 4.B (the "Indemnified Party") agrees to give prompt notice to the Person against whom indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or the commencement of any suit, action or proceeding, in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. (b2) The Indemnifying Party shall be entitled to defend any claim asserted by any third party ("Third Party Claim") with counsel of its choice reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third Party Claim that it will indemnify the Indemnified Party from and against all Losses Damages that the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third Party Claim, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations under this Agreement, (iii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, and (iv) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. (c3) So long as the Indemnifying Party is conducting the defense of any Third Party Claim in accordance with the provisions of this Section 10.34.C, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d4) Each party shall cooperate, and cause its Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested by any other party in connection therewith. 3 <PAGE> D. Calculation of Damages. (1) The amount of any Damages payable under Section 4.A and 4.B by the Indemnifying Party shall be net of any amounts recovered by the Indemnified Party under applicable insurance policies and the Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance policies. (2) If the Indemnified Party receives an amount under insurance coverage or from a third party with respect to Damages at any time subsequent to any indemnification provided by the Indemnifying Party pursuant to Section 4.A and 4.B, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification up to such amount received by such Indemnified Party, but net of any expenses incurred by such Indemnified Party in collecting such amount. 5.