Common use of Resolution of Claims Clause in Contracts

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceeding.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will Article 5 shall give prompt written notice to the indemnifying party Party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will Party shall not relieve the indemnifying party Party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party Party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party Party as above provided, the indemnifying party will Party shall be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will shall be paid by the indemnified party unless (a) the indemnifying party Party agrees to pay the same, (b) the indemnifying party Party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party within a reasonable amount of time after receipt of notice of such claim from the Indemnified Parry or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party Party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying partyParty. In any of such cases, the indemnified party will shall have the right to participate in the defense of such action with its own counsel, the reasonable reasonable, documented out-of-pocket fees and expenses of which will shall be paid by the indemnifying partyParty, it being understood, however, that the indemnifying party will Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will Party shall be liable for any settlement entered into without its written consentconsent (such consent not to be unreasonably withheld, conditioned or delayed). No indemnifying party willParty shall, without the consent of such indemnified partyparty (such consent not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingproceeding and (y) does not include an omission of fault, culpability or failure to act by or on behalf of any indemnified party.

Resolution of Claims. Any Person entitled to indemnification pursuant to (a) Except as otherwise provided in this Section 9 will give prompt written notice to Trust Agreement, as of the indemnifying party Effective Date, objections to, and requests for estimation of any claim with respect to which it seeks indemnification; provided that Disputed General Unsecured Claims against the failure so to notify Debtors may be interposed and prosecuted only by the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failureGUC Trust Administrator. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in andSuch objections and requests for estimation, to the extent it not already pending, shall be served on the respective claimant and filed with the Bankruptcy Court on or before the 180th day following the Effective Date (with the exception of Unliquidated Litigation Claims); provided, that the GUC Trust Administrator may wish, jointly with any other indemnifying party similarly notified, to assume the defense seek extension of such action at date by ex parte application to the Bankruptcy Court, provided further that the GUC Trust Administrator shall provide the U.S. Treasury with five business days notice prior to its own expense, with counsel chosen by it and reasonably satisfactory application to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, Bankruptcy Court. (b) the indemnifying party fails Except as otherwise set forth herein, no distributions shall be made with respect to assume the defense any portion of a Disputed General Unsecured Claim, Unresolved Term Loan Avoidance Action Claim or Unresolved Other Avoidance Action Claim unless and until such action with counsel reasonably satisfactory to the indemnified party Disputed General Unsecured Claim, Unresolved Term Loan Avoidance Action Claim or Unresolved Other Avoidance Action Claim has become an Allowed General Unsecured Claim. (c) To the named parties extent that a Disputed General Unsecured Claim, Unresolved Term Loan Avoidance Action Claim or Unresolved Other Avoidance Action Claim has become an Allowed General Unsecured Claim, distributions (if any) shall be made to the holder of such Allowed General Unsecured Claim in accordance with the provisions of the Plan, the Confirmation Order and this Trust Agreement. (d) From and after the Effective Date, the GUC Trust Administrator shall have the authority to compromise, settle, otherwise resolve or withdraw any objections to Disputed General Unsecured Claims against the Debtors, subject to the consent of the GUC Trust Monitor, as may be required pursuant to the terms of Section 11.3 hereof. (e) The GUC Trust Administrator may at any time request that the Bankruptcy Court estimate any contingent claim, unliquidated claim or Disputed General Unsecured Claim pursuant to Section 502(c) of the Bankruptcy Code regardless of whether the Debtors or any other Person previously objected to such General Unsecured Claim or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court will retain jurisdiction to estimate any General Unsecured Claim at any time during litigation concerning any objection to any General Unsecured Claim, including, without limitation, during the pendency of any appeal relating to any such action (including objection, provided that the GUC Trust Administrator shall not object to, or seek estimation of, any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel General Unsecured Claim that either (i) representation of such indemnified party and the indemnifying party would be allowed pursuant to a settlement signed by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available Debtors prior to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified partyEffective Date, unless such settlement includes an unconditional release requires approval by the Bankruptcy Court and that approval is denied. In the event that the Bankruptcy Court estimates any contingent claim, unliquidated claim or Disputed General Unsecured Claim, the amount so estimated shall constitute either the Allowed amount of such indemnified party from all liability for claims that are General Unsecured Claim or a maximum limitation on such General Unsecured Claim, as determined by the subject matter Bankruptcy Court. If the estimated amount constitutes a maximum limitation on the amount of such proceedingGeneral Unsecured Claim, the GUC Trust Administrator may pursue supplementary proceedings to object to the allowance of such General Unsecured Claim. All of the aforementioned objection, estimation and resolution procedures are intended to be cumulative and not exclusive of one another. General Unsecured Claims may be estimated and subsequently compromised, settled, withdrawn or resolved by any mechanism approved by the Bankruptcy Court. This Section 5.1(e) shall not apply to Nova Scotia Guarantee Claims or the Nova Scotia Wind-Up Claim. (f) Notwithstanding anything to the contrary contained in this Section 5.1 or elsewhere in this Trust Agreement, holders of Unliquidated Litigation Claims (other than (i) the United States, including its agencies and instrumentalities, and (ii) state, local and tribal governments with respect to any Claims concerning alleged environmental liabilities) shall be subject to the ADR Procedures. The GUC Trust Administrator shall, at all times and in all cases, comply with and implement the ADR Procedures with respect to holders of Unliquidated Litigation Claims. As set forth in the Plan, if the GUC Trust Administrator terminates the ADR Procedures with respect to an Unliquidated Litigation Claim, the GUC Trust Administrator shall have one hundred eighty (180) days from the date of termination of the ADR Procedures to file and serve an objection to such Unliquidated Litigation Claim. If the GUC Trust Administrator terminates the ADR Procedures with respect to an Unliquidated Litigation Claim and such Unliquidated Litigation Claim is litigated in a court other than the Bankruptcy Court, the GUC Trust Administrator shall have ninety (90) days from the date of entry of a Final Order adjudicating such Claim to file and serve an objection to such Claim solely for purposes of determining the treatment of such Claim under the Plan unless such time is extended by order of the Bankruptcy Court for cause.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will Article 5 shall give prompt written notice to the indemnifying party Party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will Party shall not relieve the indemnifying party Party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party Party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party Party as above provided, the indemnifying party will Party shall be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will shall be paid by the indemnified party unless (a) the indemnifying party Party agrees to pay the same, (b) the indemnifying party Party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party Party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying partyParty. In any of such cases, the indemnified party will shall have the right to participate in the defense of such action with its own counsel, the reasonable reasonable, documented out-of-pocket fees and expenses of which will shall be paid by the indemnifying partyParty, it being understood, however, that the indemnifying party will Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will Party shall be liable for any settlement entered into without its written consentconsent (such consent not to be unreasonably withheld, conditioned or delayed). No indemnifying party willParty shall, without the consent of such indemnified partyparty (such consent not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingproceeding and (y) does not include an omission of fault, culpability or failure to act by or on behalf of any indemnified party.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 6 will give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceeding.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will hereunder shall: (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided and (b) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent, which shall not be unreasonably delayed, withheld, or conditioned. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment (with written advice of counsel) of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. The failure to give notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Section 7, to the extent that such failure materially prejudices the indemnifying party’s ability to defend such action. The failure so to notify give notice to the indemnifying party will not relieve the indemnifying party it of any liability that it may have to the any indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate than under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingthis Section 7.

Resolution of Claims. Any Person entitled Following timely provided notice of an indemnification claim under this Agreement in accordance with Section 12.05(a) (other than a Third Party Claim which is governed by Section 12.05(b)), the Indemnifying Party will have thirty (30) days from the date notice was provided of such claim (the “Dispute Period”) to indemnification pursuant make such investigation of the claim as the Indemnifying Party deems necessary or advisable. For purposes of such investigation, the Indemnified Party will make available to this Section 9 the Indemnifying Party all the information reasonably related to such claim relied upon by, or in the possession or control of, the Indemnified Party to substantiate such claim. If the Indemnifying Party disagrees with the validity or amount of all or a portion of such claim made by the Indemnified Party, the Indemnifying Party will give prompt provide to the Indemnified Party written notice thereof (the “Indemnification Dispute Notice”) prior to the indemnifying party expiration of any claim the Dispute Period. If no Indemnification Dispute Notice is timely provided to the Indemnified Party within the Dispute Period or if the Indemnifying Party provides notice that it does not have a dispute with respect to which it seeks such claim for indemnification; provided that , then such claim will be deemed approved and consented to by the failure so Indemnifying Party (such claim being referred to notify herein as an “Approved Indemnification Claim”). The Indemnifying Party will pay the indemnifying party will not relieve amount of the indemnifying party Approved Indemnification Claim by wire transfer of any liability that it may have immediately available funds (or, with respect to Seller, pursuant to Section 12.07(e)) to the indemnified party hereunder except account designated in writing by the Indemnified Party within five (5) Business Days after such claim is determined to be an Approved Indemnification Claim. If a Dispute Notice is provided to the extent that Indemnified Party within the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason Dispute Period and the Indemnifying Party and the Indemnified Party do not agree to the validity and/or amount of such failuredisputed claim, the Indemnifying Party and the Indemnified Party shall negotiate in good faith for a period of at least sixty (60) days to resolve the dispute. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Indemnifying Party and the indemnified party Indemnified Party are unable to come to an agreement regarding such disputed claim during such sixty (60) day period, such dispute shall be deemed a Transaction Dispute and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate resolved in the defense of such action accordance with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingSection 13.13.

Resolution of Claims. Any Person entitled Following timely provided notice of an indemnification claim under this Agreement in accordance with Section 8.03(a) (other than a Third Party Claim which is governed by Section 8.03(b)), the Indemnifying Party will have thirty (30) days from the date notice was provided of such claim (the “Dispute Period”) to indemnification pursuant make such investigation of the claim as the Indemnifying Party deems necessary or advisable. For purposes of such investigation, the Indemnified Party will make available to this Section 9 the Indemnifying Party all the information reasonably related to such claim relied upon by, or in the possession or control of, the Indemnified Party to substantiate such claim. If the Indemnifying Party disagrees with the validity or amount of all or a portion of such claim made by the Indemnified Party, the Indemnifying Party will give prompt provide to the Indemnified Party written notice thereof (the “Indemnification Dispute Notice”) prior to the indemnifying party expiration of any claim the Dispute Period. If no Indemnification Dispute Notice is timely provided to the Indemnified Party within the Dispute Period or if the Indemnifying Party provides notice that it does not have a dispute with respect to which it seeks such claim for indemnification; provided that , then such claim will be deemed approved and consented to by the failure so Indemnifying Party (such claim being referred to notify herein as an “Approved Indemnification Claim”). The Indemnifying Party will pay the indemnifying party will not relieve amount of the indemnifying party Approved Indemnification Claim by wire transfer of any liability that it may have immediately available funds to the indemnified party hereunder except account designated in writing by the Indemnified Party within five (5) Business Days after such claim is determined to be an Approved Indemnification Claim. If a Dispute Notice is provided to the extent that Indemnified Party within the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason Dispute Period and the Indemnifying Party and the Indemnified Party do not agree to the validity and/or amount of such failuredisputed claim, the Indemnifying Party and the Indemnified Party shall negotiate in good faith for a period of at least sixty (60) days to resolve the dispute. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Indemnifying Party and the indemnified party and Indemnified Party are unable to come to an agreement regarding such parties have been advised by disputed claim during such counsel that either sixty (i60) representation of day period, such indemnified party and the indemnifying party by the same counsel would dispute shall be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate resolved in the defense of such action accordance with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingSection 9.06.

Resolution of Claims. Any Person entitled to indemnification pursuant to (a) Except as otherwise provided in this Section 9 will give prompt written notice to Trust Agreement, as of the indemnifying party Effective Date, objections to, and requests for estimation of any claim with respect to which it seeks indemnification; provided that Disputed General Unsecured Claims against the failure so to notify Debtors may be interposed and prosecuted only by the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failureGUC Trust Administrator. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in andSuch objections and requests for estimation, to the extent it not already pending, shall be served on the respective claimant and filed with the Bankruptcy Court on or before the 180th day following the Effective Date (with the exception of Unliquidated Litigation Claims); provided, that the GUC Trust Administrator may wish, jointly with any other indemnifying party similarly notified, to assume the defense seek extension of such action at date by ex parte application to the Bankruptcy Court, provided further that the GUC Trust Administrator shall provide the U.S. Treasury with five business days notice prior to its own expense, with counsel chosen by it and reasonably satisfactory application to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, Bankruptcy Court. (b) the indemnifying party fails Except as otherwise set forth herein, no distributions shall be made with respect to assume the defense any portion of a Disputed General Unsecured Claim, Unresolved Term Loan Avoidance Action Claim or Unresolved Other Avoidance Action Claim unless and until such action with counsel reasonably satisfactory to the indemnified party Disputed General Unsecured Claim, Unresolved Term Loan Avoidance Action Claim or Unresolved Other Avoidance Action Claim has become an Allowed General Unsecured Claim. (c) To the named parties extent that a Disputed General Unsecured Claim, Unresolved Term Loan Avoidance Action Claim or Unresolved Other Avoidance Action Claim has become an Allowed General Unsecured Claim, distributions (if any) shall be made to the holder of such Allowed General Unsecured Claim in accordance with the provisions of the Plan, the Confirmation Order, the Liquidation Order and this Trust Agreement. (d) From and after the Effective Date, the GUC Trust Administrator shall have the authority to compromise, settle, otherwise resolve or withdraw any objections to Disputed General Unsecured Claims against the Debtors, subject to the consent of the GUC Trust Monitor, as may be required pursuant to the terms of Section 11.3 hereof. (e) The GUC Trust Administrator may at any time request that the Bankruptcy Court estimate any contingent claim, unliquidated claim or Disputed General Unsecured Claim pursuant to Section 502(c) of the Bankruptcy Code regardless of whether the Debtors or any other Person previously objected to such General Unsecured Claim or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court will retain jurisdiction to estimate any General Unsecured Claim at any time during litigation concerning any objection to any General Unsecured Claim, including, without limitation, during the pendency of any appeal relating to any such action (including objection, provided that the GUC Trust Administrator shall not object to, or seek estimation of, any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel General Unsecured Claim that either (i) representation of such indemnified party and the indemnifying party would be allowed pursuant to a settlement signed by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available Debtors prior to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified partyEffective Date, unless such settlement includes an unconditional release requires approval by the Bankruptcy Court and that approval is denied. In the event that the Bankruptcy Court estimates any contingent claim, unliquidated claim or Disputed General Unsecured Claim, the amount so estimated shall constitute either the Allowed amount of such indemnified party from all liability for claims that are General Unsecured Claim or a maximum limitation on such General Unsecured Claim, as determined by the subject matter Bankruptcy Court. If the estimated amount constitutes a maximum limitation on the amount of such proceedingGeneral Unsecured Claim, the GUC Trust Administrator may pursue supplementary proceedings to object to the allowance of such General Unsecured Claim. All of the aforementioned objection, estimation and resolution procedures are intended to be cumulative and not exclusive of one another. General Unsecured Claims may be estimated and subsequently compromised, settled, withdrawn or resolved by any mechanism approved by the Bankruptcy Court. This Section 5.1(e) shall not apply to Nova Scotia Guarantee Claims or the Nova Scotia Wind-Up Claim. (f) Notwithstanding anything to the contrary contained in this Section 5.1 or elsewhere in this Trust Agreement, holders of Unliquidated Litigation Claims (other than (i) the United States, including its agencies and instrumentalities, and (ii) state, local and tribal governments with respect to any Claims concerning alleged environmental liabilities) shall be subject to the ADR Procedures. The GUC Trust Administrator shall, at all times and in all cases, comply with and implement the ADR Procedures with respect to holders of Unliquidated Litigation Claims. As set forth in the Plan, if the GUC Trust Administrator terminates the ADR Procedures with respect to an Unliquidated Litigation Claim, the GUC Trust Administrator shall have one hundred eighty (180) days from the date of termination of the ADR Procedures to file and serve an objection to such Unliquidated Litigation Claim. If the GUC Trust Administrator terminates the ADR Procedures with respect to an Unliquidated Litigation Claim and such Unliquidated Litigation Claim is litigated in a court other than the Bankruptcy Court, the GUC Trust Administrator shall have ninety (90) days from the date of entry of a Final Order adjudicating such Claim to file and serve an objection to such Claim solely for purposes of determining the treatment of such Claim under the Plan unless such time is extended by order of the Bankruptcy Court for cause.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will 6 shall give prompt written notice to the indemnifying party Party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will Party shall not relieve the indemnifying party Party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party Party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party Party as above provided, the indemnifying party will Party shall be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will shall be paid by the indemnified party unless (a) the indemnifying party Party agrees to pay the same, (b) the indemnifying party Party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party Party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying partyParty. In any of such cases, the indemnified party will shall have the right to participate in the defense of such action with its own counsel, the reasonable reasonable, documented out-of-pocket fees and expenses of which will shall be paid by the indemnifying partyParty, it being understood, however, that the indemnifying party will Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will Party shall be liable for any settlement entered into without its written consentconsent (such consent not to be unreasonably withheld, conditioned or delayed). No indemnifying party willParty shall, without the consent of such indemnified partyparty (such consent not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingproceeding and (y) does not include an omission of fault, culpability or failure to act by or on behalf of any indemnified party.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 hereunder will give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will not have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party Indemnified Party from all liability for claims that are the subject matter of such proceeding.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; Following timely provided that the failure so to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action a Claim under this Agreement in accordance with Section 9.1 (other than a Third Party Claim which is given to the indemnifying party as above providedgoverned by Section 8.2), the indemnifying party will be entitled to participate in and, to have thirty (30) days from the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense date notice was provided of such action at its own expense, with counsel chosen by it and reasonably satisfactory Claim (the “Dispute Period”) to make such indemnified party. The indemnified party will have investigation of the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) Claim as the indemnifying party agrees deems necessary or advisable. For purposes of such investigation, the Indemnified Person will make available to pay the same, (b) the indemnifying party fails all the information reasonably related to assume such Claim relied upon by, or in the defense possession or control of, the Indemnified Person to substantiate such Claim. If the indemnifying party disagrees with the validity or amount of all or a portion of such action with counsel reasonably satisfactory Claim made by the Indemnified Person, the indemnifying party will provide to the indemnified Indemnified Person written notice thereof (the “Indemnification Dispute Notice”) prior to the expiration of the Dispute Period. If no Indemnification Dispute Notice is timely provided to the Indemnified Person within the Dispute Period or if the indemnifying party or provides notice that it does not have a dispute with respect to such Claim for indemnification, then such Claim will be deemed approved and consented to by the indemnifying party (csuch Claim being referred to herein as an “Approved Indemnification Claim”). The indemnifying party will pay the amount of the Approved Indemnification Claim by wire transfer of immediately available funds within five (5) business days after such Claim is determined to be an Approved Indemnification Claim. If an Indemnification Dispute Notice is provided to the named parties to any such action (including any impleaded parties) include both Indemnified Person within the Dispute Period and the indemnifying party and the indemnified party and such parties have been advised by such counsel that either (i) representation Indemnified Person do not agree to the validity and/or amount of such indemnified disputed Claim, the indemnifying party and the indemnifying party by Indemnified Person shall negotiate in good faith for a period of at least sixty (60) days to resolve the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying partydispute. In any of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that If the indemnifying party will not and the Indemnified Person are unable to come to an agreement regarding such disputed Claim during such sixty (60) day period, such dispute shall be liable for the fees and expenses of more than one separate firm of attorneys (resolved in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingaccordance with Section 9.3.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will Article 5 shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will shall not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will shall be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will shall be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party within a reasonable amount of time after receipt of notice of such claim from the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will shall have the right to participate in the defense of such action with its own counsel, the reasonable reasonable, documented out-of-pocket fees and expenses of which will shall be paid by the indemnifying party, it being understood, however, that the indemnifying party will shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will shall be liable for any settlement entered into without its written consentconsent (such consent not to be unreasonably withheld, conditioned or delayed). No indemnifying party willshall, without the consent of such indemnified partyparty (such consent not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingproceeding and (y) does not include an omission of fault, culpability or failure to act by or on behalf of any indemnified party.

Resolution of Claims. Any Person entitled (a) Each Indemnified Party shall provide to indemnification pursuant the Escrow Agent a copy of any Direct Claim Notice or Third Party Claim Notice (either, a “Claim Notice”) simultaneously with the delivery thereof to the Stockholder Representative. No Claim Notice shall be provided to the Stockholder Representative or the Escrow Agent following the Escrow Termination Date. (b) Upon receipt of a Claim Notice in accordance with the terms of this Section 9 will give prompt Article IX, the Escrow Agent shall set aside and hold, as a reserve to cover the claim set forth in the Claim Notice (the “Indemnified Party Claim”), a portion of the Escrow Fund equal to the Claim Amount set forth therein (a “Reserve”), until there is a final resolution of such Indemnified Party Claim in accordance with the terms of this Article IX. (c) Following receipt by the Stockholder Representative and the Escrow Agent of a Claim Notice in accordance with the terms of this Article IX, the Stockholder Representative shall have no fewer than sixty (60) calendar days (the “Claim Investigation Period”) to make an investigation of the Indemnified Party Claim. In connection with each Indemnified Party Claim, Parent and the other Indemnified Parties shall, and shall cause their respective Affiliates and Representatives to, (x) allow the Stockholder Representative and its Representatives to investigate the facts, matters and circumstances alleged to have given rise to such Indemnified Party Claim and the related Claim Basis and Claim Amount, and (y) disclose to the Stockholder Representative and its Representatives all material of which they are aware which relates to the Indemnified Party Claim and promptly provide such information and assistance as the Stockholder Representative and its Representatives shall reasonably request, including reasonable access to premises and personnel (including any employee with knowledge relating to the relevant facts, matters or circumstances or who can otherwise reasonably assist the requesting party), and the right to examine and copy or photograph any relevant assets, accounts, correspondence, documents and records. (d) At any time prior to the expiration of the Claim Investigation Period, the Stockholder Representative may dispute the Indemnified Party Claim, the related Claim Basis and/or all or any part of the related Claim Amount specified in such Claim Notice (a “Dispute”) by providing written notice of such dispute (a “Dispute Notice”) to Parent and the Escrow Agent on or prior to the indemnifying party expiration of any claim with respect to the Claim Investigation Period. Each Dispute Notice shall specify, in reasonable detail, the factual grounds for the Dispute, specify the portion of the Indemnified Party Claim which it seeks indemnification; provided that the failure so to notify Stockholder Representative does not dispute, if any, and include all available documentation supporting such Dispute. (e) If the indemnifying party will Escrow Agent does not relieve receive from the indemnifying party of any liability that it may have Stockholder Representative a Dispute Notice on or prior to the indemnified party hereunder except expiration of the Claim Investigation Period, then the Escrow Agent shall release and distribute to Parent, in accordance with the terms of this Article IX and the Escrow Agreement, no fewer than three (3) Business Days after the expiration of the Claim Investigation Period, such portion of the Escrow Fund equal to the extent that applicable Reserve and, upon payment thereof, such Reserve and such Indemnified Party Claim shall be deemed to have been finally resolved and discharged in full. (f) If the indemnifying party is materially prejudiced Escrow Agent receives from the Stockholder Representative, on or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given prior to the indemnifying party as above providedexpiration of the Claim Investigation Period, the indemnifying party will be entitled to participate in anda Dispute Notice, then, to the extent it may wishapplicable, jointly with any other indemnifying party similarly notifiedthe Escrow Agent shall release and distribute to Parent a portion of the Escrow Fund equal to the uncontested portion of the Claim Amount, to assume the defense if any, no later than three (3) Business Days after receipt of such action at its own expenseDispute Notice and, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense upon payment thereof, but the fees relevant portion of the Reserve, Indemnified Party Claim and expenses Dispute shall be deemed to have been finally resolved and discharged in full. (g) Following the receipt by Parent and the Escrow Agent of such counsel will be paid by a Dispute Notice, if Parent and the indemnified party unless (a) Stockholder Representative agree in writing, prior to or on the indemnifying party agrees to pay date of the sameexpiration of the Claim Investigation Period, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory as to the indemnified party validity and amount of all or (c) a portion of the named parties Claim Amount of any Indemnified Party Claim that is subject to any such action (including any impleaded parties) include both the indemnifying party a Dispute Notice, they shall promptly and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available jointly provide to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys Escrow Agent a written notice (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceeding.“

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will 6 shall give prompt written notice to the indemnifying party Party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will Party shall not relieve the indemnifying party Party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party Party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party Party as above provided, the indemnifying party will Party shall be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will shall be paid by the indemnified party unless (a) the indemnifying party Party agrees to pay the same, (b) the indemnifying party Party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party Party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying partyParty. In any of such cases, the indemnified party will shall have the right to participate in the defense of such action with its own counsel, the reasonable reasonable, documented out-of-pocket fees and expenses of which will shall be paid by the indemnifying partyParty, it being understood, however, that the indemnifying party will Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will Party shall be liable for any settlement entered into without its written consentconsent (such consent not to be unreasonably withheld, conditioned or delayed). No indemnifying party willParty shall, without the consent of such indemnified partyparty (such consent not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceeding.proceeding and (y) does not include an omission of fault, culpability or failure to act by or on behalf of any indemnified party. 6.15

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; Following timely provided that the failure so to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action a Claim under this Agreement in accordance with Section 9.1 (other than a Third Party Claim which is given to the indemnifying party as above providedgoverned by Section 8.4), the indemnifying party will be entitled to participate in and, to have thirty (30) days from the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense date notice was provided of such action at its own expense, with counsel chosen by it and reasonably satisfactory Claim (the “Dispute Period”) to make such indemnified party. The indemnified party will have investigation of the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) Claim as the indemnifying party agrees deems necessary or advisable. For purposes of such investigation, the Indemnified Person will make available to pay Parent all the sameinformation reasonably related to such Claim relied upon by, or in the possession or control of, the Indemnified Person to substantiate such Claim. If Parent disagrees with the validity or amount of all or a portion of such Claim made by the Indemnified Person, Parent will provide to the Indemnified Person written notice thereof (bthe “Indemnification Dispute Notice”) prior to the expiration of the Dispute Period. If no Indemnification Dispute Notice is timely provided to the Indemnified Person within the Dispute Period or if the indemnifying party fails provides notice that it does not have a dispute with respect to assume such Claim for indemnification, then such Claim will be deemed approved and consented to by the defense indemnifying party (such Claim being referred to herein as an “Approved Indemnification Claim”). Parent will issue shares of Parent Common Stock in satisfaction of the Approved Indemnification Claim to the Company Indemnified Person within five (5) business days after such Claim is determined to be an Approved Indemnification Claim, or to the Parent Indemnified Person on such date as any Earn-Out Payment is made. If an Indemnification Dispute Notice is provided to the Indemnified Person within the Dispute Period and Parent and the Indemnified Person do not agree to the validity and/or amount of such action with counsel reasonably satisfactory disputed Claim, Parent and the Indemnified Person shall negotiate in good faith for a period of at least sixty (60) days to resolve the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both dispute. If the indemnifying party and the indemnified party and Indemnified Person are unable to come to an agreement regarding such parties have been advised by disputed Claim during such counsel that either sixty (i60) representation of day period, such indemnified party and the indemnifying party by the same counsel would dispute shall be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate resolved in the defense of such action accordance with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingSection 9.3.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will Article 5 shall give prompt written notice to the indemnifying party Party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will Party shall not relieve the indemnifying party Party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party Party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party Party as above provided, the indemnifying party will Party shall be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will shall be paid by the indemnified party unless (a) the indemnifying party Party agrees to pay the same, (b) the indemnifying party Party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party within a reasonable amount of time after receipt of notice of such claim from the Indemnified Parry or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party Party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying partyParty. In any of such cases, the indemnified party will shall have the right to participate in the defense of such action with its own counsel, the reasonable reasonable, documented out-of-pocket fees and expenses of which will shall be paid by the indemnifying partyParty, it being understood, however, that the indemnifying party will Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will Party shall be liable for any settlement entered into without its written consentconsent (such consent not to be unreasonably withheld, conditioned or delayed). No indemnifying party willParty shall, without the consent of such indemnified partyparty (such consent not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such -25- US-DOCS\70827213.10 indemnified party from all liability for claims that are the subject matter of such proceedingproceeding and (y) does not include an omission of fault, culpability or failure to act by or on behalf of any indemnified party.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will give prompt written notice to the indemnifying party of any claim with (a) With respect to which it seeks indemnification; provided that any Indemnity Claim involving a Third-Party Claim, following prompt notification of the failure so to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party as above providedIndemnifying Party, the indemnifying party will be entitled to participate in and, to Indemnifying Party shall have the extent it may wish, jointly option of proceeding with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either Third Party Claim provided (i) representation the Indemnifying Party has either not disputed its liability for the Indemnity pursuant to Section 17.1 or the liability of such indemnified party and the indemnifying party by Indemnifying Party for the same counsel would be inappropriate under applicable standards of professional conduct or Indemnity Claim has been determined pursuant to Section 17.1, (ii) it is reasonably foreseeable that there will be one or more material legal defenses available the Indemnifying Party has appointed counsel acceptable to the indemnified party which are different from or additional Indemnified Party (whose approval shall not be unreasonably withheld) and (iii) the Indemnifying Party shall have assumed and agreed to those available bear all reasonable costs related to the indemnifying partyIndemnity Claim and reimbursed the Indemnified Party for reasonable costs incurred, if any, by the Indemnifying Party prior to assuming the defense. In any During such defense proceedings, the Indemnifying Party shall keep the Indemnified Party informed of all material developments and events relating to the proceedings. The Indemnified Party shall have a right to be present at the negotiation, defense and settlement of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will Third-Party Claim. The Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition agree to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, of the Third-Party Claim without the consent of such indemnified partythe Indemnified Party, effect which consent shall not be unreasonably withheld. (b) With respect to any settlement Indemnity Claim not involving a Third-Party Claim, if the Indemnifying Party disputes its liability within the Notice Period, the liability of any pending or threatened proceeding the Indemnifying Party shall be resolved in respect of which such indemnified party is a party accordance with Section 17.1. (c) In the event that an Indemnified Party makes an Indemnity Claim in accordance with Section 10.3 and indemnity has been sought hereunder by such indemnified partythe Indemnifying Party does not dispute its liability within the Notice Period, unless such settlement includes an unconditional release the amount of such indemnified party from all Indemnity Claim shall be conclusively deemed a liability for claims that are of the subject matter of such proceedingIndemnifying Party.

Resolution of Claims. Any Following timely provided notice of a Claim under this Agreement in accordance with Section 9.1 (other than a Third Party Claim which is governed by Section 8.3), the Indemnifying Party will have thirty (30) days from the date notice was provided of such Claim (the “Dispute Period”) to make such investigation of the Claim as the Indemnifying Party deems necessary or advisable. For purposes of such investigation, the Indemnified Person entitled will make available to indemnification pursuant the Indemnifying Party all the information reasonably related to this Section 9 such Claim relied upon by, or in the possession or control of, the Indemnified Person to substantiate such Claim. If the Indemnifying Party disagrees with the validity or amount of all or a portion of such Claim made by the Indemnified Person, the Indemnifying Party will give prompt provide to the Indemnified Person written notice thereof (the “Indemnification Dispute Notice”) prior to the indemnifying party expiration of any claim the Dispute Period. If the Indemnifying Party provides notice that it does not have a dispute with respect to which it seeks such Claim for indemnification; provided that , then such Claim will be deemed approved and consented to by the failure so Indemnifying Party (such Claim being referred to notify herein as an “Approved Indemnification Claim”). The Indemnifying Party will pay the indemnifying party will not relieve amount of the indemnifying party Approved Indemnification Claim by wire transfer of any liability that it may have to immediately available funds (or, in the indemnified party hereunder except case of an Indemnifying Seller, by delivery of its shares of Buyer Common Stock to the extent that applicable under Article VIII) within five (5) business days after such Claim is determined to be an Approved Indemnification Claim. If no Indemnification Dispute Notice is timely provided to the indemnifying party Indemnified Person within the Dispute Period or if an Indemnification Dispute Notice is materially prejudiced or otherwise forfeits substantive rights or defenses by reason provided to the Indemnified Person within the Dispute Period and the Indemnifying Party and the Indemnified Person do not agree to the validity and/or amount of such failuredisputed Claim, the Indemnifying Party and the Indemnified Person shall negotiate in good faith for a period of at least sixty (60) days to resolve the dispute. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Indemnifying Party and the indemnified party and Indemnified Person are unable to come to an agreement regarding such parties have been advised by disputed Claim during such counsel that either sixty (i60) representation of day period, such indemnified party and the indemnifying party by the same counsel would dispute shall be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate resolved in the defense of such action accordance with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingSection 9.3.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will give prompt written notice to the indemnifying party of any claim with (a) With respect to which it seeks indemnification; provided that any Indemnity Claim involving a Third-Party Claim, following prompt notification of the failure so to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party as above providedIndemnifying Party, the indemnifying party will be entitled to participate in and, to Indemnifying Party shall have the extent it may wish, jointly option of proceeding with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either Third Party Claim provided (i) representation the Indemnifying Party has either not disputed its liability for the Indemnity Claim pursuant to Section 12.4(c) or the liability of such indemnified party and the indemnifying party by Indemnifying Party for the same counsel would be inappropriate under applicable standards of professional conduct or Indemnity Claim has been determined pursuant to Section 12.4(b), (ii) it is reasonably foreseeable that there will be one or more material legal defenses available the Indemnifying Party has appointed counsel acceptable to the indemnified party which are different from or additional Indemnified Party (whose approval shall not be unreasonably withheld) and (iii) the Indemnifying Party shall have assumed and agreed to those available bear all reasonable costs related to the indemnifying partyIndemnity Claim and reimbursed the Indemnified Party for reasonable costs incurred, if any, by the Indemnifying Party prior to assuming the defense. In any During such defense proceedings, the Indemnifying Party shall keep the Indemnified Party informed of all material developments and events relating to the proceedings. The Indemnified Party shall have a right to be present at the negotiation, defense and settlement of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will Third-Party Claim. The Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition agree to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, of the Third-Party Claim without the consent of such indemnified partythe Indemnified Party, effect which consent shall not be unreasonably withheld. (b) With respect to any settlement Indemnity Claim not involving a Third-Party Claim, if the Indemnifying Party disputes its liability within the Notice Period, the liability of any pending or threatened proceeding the Indemnifying Party shall be resolved in respect of which such indemnified party is a party accordance with Section 12.5. (c) In the event that an Indemnified Party makes an Indemnity Claim in accordance with Section 12.3 and indemnity has been sought hereunder by such indemnified partythe Indemnifying Party does not dispute its liability within the Notice Period, unless such settlement includes an unconditional release the amount of such indemnified party from all Indemnity Claim shall be conclusively deemed a liability for claims that are of the subject matter Indemnifying Party, and any dispute as to the liability of such proceeding.the Indemnifying Party shall be determined pursuant to Section 12.5

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 hereunder will (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; indemnification (provided that the failure so of any indemnified party to notify the indemnifying party give notice as provided herein will not relieve the indemnifying party of any liability that it may have to its obligations under the indemnified party hereunder preceding subsections of this Section 6, except to the extent that the indemnifying party is materially actually prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given failure to give notice, and will not relieve the indemnifying party as above providedfrom any liability which it may have to the indemnified party otherwise than under this Section 6) and (b) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, the permit such indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be paid by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action claim with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of If such casesdefense is assumed, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one separate firm of attorneys (in addition to any counsel, other than local and special counsel) , for all parties indemnified parties. No by such indemnifying party will be liable for with respect to such claim, unless in the reasonable judgment of any settlement entered into without its written consentindemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party will, without the consent of such the indemnified party, effect consent to entry of any judgment or enter into any settlement of any pending which does not include as an unconditional term thereof the giving by the claimant or threatened proceeding in respect of which plaintiff to such indemnified party is of a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of in respect to such proceedingclaim or litigation.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will Article 5 shall give prompt written notice to the indemnifying party Party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will Party shall not relieve the indemnifying party Party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party Party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party Party as above provided, the indemnifying party will Party shall be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will shall be paid by the indemnified party unless (a) the indemnifying party Party agrees to pay the same, (b) the indemnifying party Party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party within a reasonable amount of time after receipt of notice of such claim from the Indemnified Parry or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party Party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying partyParty. In any of such cases, the indemnified party will shall have the right to participate in the defense of such action with its own counsel, the reasonable reasonable, documented out-of-pocket fees and expenses of which will shall be paid by the indemnifying partyParty, it being understood, however, that the indemnifying party will Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will Party shall be liable for any settlement entered into without its written consentconsent (such consent not to be unreasonably withheld, conditioned or delayed). No indemnifying party willParty shall, without the consent of such indemnified partyparty (such consent not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceeding and (y) does not include an omission of fault, culpability or failure to act by or on behalf of any indemnified party. D-26 Section 5.15. Contribution. If the indemnification provided for in Section 5.12 or Section 5.13 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying Party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable Law contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying Party on the one hand and of the indemnified party on the other in connection with such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the indemnifying Party and of the indemnified party shall be determined by a court of Law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying Party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of any loss, claim, damage or liability referred to above shall be deemed to include, subject to the limitations set forth in this Section 5.15, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The Parties agree that it would not be just and equitable if contribution pursuant to this Section 5.15 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 5.15. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

Resolution of Claims. Any Person entitled Within twenty (20) days following the receipt by the Indemnifying Party of a Third Party Claim Notice or a Non-Third Party Claim Notice, the Indemnifying Party and the Indemnified Party will seek in good faith to determine the final amount to be paid by the Indemnifying Party to the Indemnified Party in respect of such claim pursuant to the provisions of this Agreement. If at the end of such twenty (20) days such final amount is not agreed upon, the Indemnifying Party shall select an independent registered public accounting firm (the “Indemnity Referee”) from among KPMG LLP, PricewaterhouseCoopers LLP, Ernst & Young and Deloitte & Touche LLP (provided that any such selected firm shall not otherwise be engaged by either Party), to determine such final amount or to determine that such final amount is not determinable. If the Indemnity Referee is engaged with respect to any claim made by the Indemnified Party prior to September 1, 2008, the Indemnity Referee shall be directed to determine the final amount of such claim or to determine that such final amount is not determinable no later than December 30, 2008. If the Indemnity Referee is engaged with respect to any claim made by the Indemnified Party after September 1, 2008 and prior to September 1, 2009, the Indemnity Referee shall be directed to determine the final amount of such claim or to determine that such final amount is not determinable no later than December 30, 2009. If the Indemnity Referee determines such final amount, the determination by the Indemnity Referee shall be delivered in writing to, and shall be final and binding upon, each of the Indemnifying Party and the Indemnified Party. If the Indemnity Referee determines that the final amount is not determinable (due to the fact that it relates to a Third Party Claim or otherwise), then the procedures of this Section 9.7(e) shall be suspended until the resolution of the Third Party Claim or the final amount is otherwise determinable, at which time the procedures of this Section 9.7(e) shall be complied with. Payment of a final amount shall be made by the Indemnifying Party within five (5) Business Days after receipt by such Indemnifying Party of the written determination of the Indemnity Referee of such final amount. Each of Stockholder, Seller, Buyer and Parent hereby agrees that the provisions of this Section 9.7(e) shall be the sole and exclusive remedy of the Indemnifying Party and the Indemnified Party with respect to resolving any issue or claim relating to indemnification under this Agreement. In the event that a final amount of any indemnification payment to be made by Seller or Stockholder as the Indemnifying Party to a Buyer Indemnified Party has been determined pursuant to this Section 9 will give prompt written notice 9.7(e) but has not been paid at the time that an Earn Out Payment (or a payment pursuant to Section 2.3(d)) is due, then Parent may deduct the indemnifying party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of final amount from such failure. If notice of commencement of any such action is given to the indemnifying party as above provided, the indemnifying party will be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified partyEarn Out Payment. The indemnified party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will the Indemnity Referee shall be paid one half by the indemnified party unless (a) the indemnifying party agrees to pay the same, (b) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Seller and the indemnified party and such parties have been advised one half by such counsel that either (i) representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party. In any of such cases, the indemnified party will have the right to participate in the defense of such action with its own counsel, the reasonable fees and expenses of which will be paid by the indemnifying party, it being understood, however, that the indemnifying party will not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will be liable for any settlement entered into without its written consent. No indemnifying party will, without the consent of such indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingParent.

Resolution of Claims. Any Person entitled to indemnification pursuant to this Section 9 will Article 5 shall give prompt written notice to the indemnifying party Party of any claim with respect to which it seeks indemnification; provided that the failure so to notify the indemnifying party will Party shall not relieve the indemnifying party Party of any liability that it may have to the indemnified party hereunder except to the extent that the indemnifying party Party is materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such failure. If notice of commencement of any such action is given to the indemnifying party Party as above provided, the indemnifying party will Party shall be entitled to participate in and, to the extent it may wish, jointly with any other indemnifying party Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such indemnified party. The indemnified party will shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will shall be paid by the indemnified party unless (a) the indemnifying party Party agrees to pay the same, (b) the indemnifying party Party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party within a reasonable amount of time after receipt of notice of such claim from the Indemnified Parry or (c) the named parties to any such action (including any impleaded parties) include both the indemnifying party Party and the indemnified party and such parties have been advised by such counsel that either (i) representation of such indemnified party and the indemnifying party Party by the same counsel would be inappropriate under applicable standards of professional conduct or (ii) it is reasonably foreseeable that there will be one or more material legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying partyParty. In any of such cases, the indemnified party will shall have the right to participate in the defense of such action with its own counsel, the reasonable reasonable, documented out-of-pocket fees and expenses of which will shall be paid by the indemnifying partyParty, it being understood, however, that the indemnifying party will Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. No indemnifying party will Party shall be liable for any settlement entered into without its written consentconsent (such consent not to be unreasonably withheld, conditioned or delayed). No indemnifying party willParty shall, without the consent of such indemnified partyparty (such consent not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is a party and indemnity has been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such proceedingproceeding and (y) does not include an omission of fault, culpability or failure to act by or on behalf of any indemnified party. Section 5.15.