Common use of Third Party Claims, etc Clause in Contracts

Third Party Claims, etc. If any claim ("Asserted Claim") covered by the foregoing indemnities is asserted against any indemnified party ("Indemnitee") by a third party, it shall be a condition to the obligations under this Article that the Indemnitee shall promptly give the indemnifying party ("Indemnitor") notice thereof in accordance with Section 13.05; provided, however, that the failure to so notify the Indemnitor shall not affect the rights to indemnification hereunder with respect thereto so long as written notice of a claim is given prior to the expiration of the applicable representations, warranties or covenants except to the extent that the Indemnitor is actually prejudiced by such failure. The Indemnitee shall give Indemnitor an opportunity to control negotiations toward resolution of such claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to Indemnitee, at Indemnitor's expense, and Indemnitee shall extend reasonable cooperation in connection with such defense. If the Indemnitor fails to assume control of the negotiations prior to litigation or the defense of such action within a reasonable time, Indemnitee shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and Indemnitor shall be liable to the Indemnitee for its expenses reasonably incurred in connection therewith which Indemnitor shall promptly pay. If the Indemnitor has reasonably concluded, based on the written advice of counsel, that there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnitee and the Indemnitor, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to the Indemnitor, in which case the reasonable fees, disbursements and charges of such counsel will be at the expense of the Indemnitor. If the Indemnitor has assumed control of the negotiations or defense and has not notified the Indemnitee that it has concluded that there exists a conflict of interest contemplated by the prior sentence, an Indemnitee may deliver a written request to Indemnitor for confirmation that the Asserted Claim is covered by the Indemnitor's indemnification obligation under this Article 10. If the Indemnitor denies that the Asserted Claim is so covered or fails to respond to such request by the twentieth day following the later of the date of delivery of the written request or the date of commencement of the action in respect thereof, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to Indemnitor to be kept informed of, and consulted with respect to, developments relating to the legal proceedings relating to the Asserted Claim and the reasonable fees, disbursements and charges of such counsel to Indemnitee will initially be at the expense of Indemnitee but with the understanding that (i) if it is subsequently determined that the Asserted Claim was covered by Indemnitor's indemnification obligation under this Article 10 or (ii) Indemnitor effects a settlement with the Person pursuing the Asserted Claim, Indemnitor shall be obligated to repay Indemnitee for all such fees, disbursements and charges. If Indemnitor is responsible for repayment pursuant to clause (i) of the immediately preceding sentence, then the repayment shall include interest on the repaid amounts at 6% per annum from the date of incurrence to the date of payment. Neither Indemnitor nor Indemnitee shall settle, compromise, or make any other disposition of any Asserted Claims, which would or might result in any liability to Indemnitee or Indemnitor, respectively, under this Article 10 without the written consent of Indemnitee or Indemnitor, respectively, which shall not be unreasonably withheld. If an Indemnitee asserts a claim for indemnification hereunder in respect of an Asserted Claim as to which an action has been brought against the Indemnitee, the Indemnitee shall upon the written request of the Indemnitor, promptly implead, commence an action over or take such other comparable procedural step as may be available to the Indemnitee to make the Indemnitor party to such action. Notwithstanding the foregoing, the Indemnitor shall not be entitled to assume the defense of any Asserted Claim (and shall be liable for the fees and expenses of counsel reasonably acceptable to Indemnitor incurred by the Indemnitee in defending such Asserted Claim) if the Asserted Claim seeks an order, injunction or other equitable relief against the Indemnitee that would materially adversely affect the Business and that is the only claim made or that cannot be separated from any related claim for money damages. The Indemnitor shall also be entitled to participate in the defense of such claim at its own expense. If such claim for an order, injunction or other equitable relief can be so separated from that for money damages, the Indemnitor shall be entitled to assume the defense of the portion relating to money damages. If the Closing occurs, the indemnification provided for in this Article 10 shall be the exclusive remedy of any party in respect of inaccuracy in any representations and warranties contained herein.

Third Party Claims, etc. If Promptly after (a) becoming aware of any fact, occurrence or event which may give rise to a claim for indemnification under this Section 11 or ("Asserted Claim"b) covered the receipt by any Indemnitee of notice of the foregoing indemnities is asserted commencement of any action or other claim against any indemnified party ("Indemnitee") such Indemnitee by a third party, it shall such Indemnitee shall, if a claim with respect thereto is or may be a condition made against any Indemnifying Party pursuant to this Section 11, give such Indemnifying Party written notice of the nature and basis of such claim. Prior to the obligations under this Article thirtieth day after receipt by the Indemnifying Party of a notice from the Indemnitee with respect to the commencement of an action or other claim by a third party, the Indemnitee will defend against such claim (provided that the Indemnitee shall promptly give not settle such claim). The Indemnifying Parties shall have the indemnifying party ("Indemnitor") notice thereof in accordance right to defend such claim, at the Indemnifying Parties' expense and with Section 13.05; providedcounsel of their choice reasonably satisfactory to the Indemnitee, however, provided that the failure to Indemnifying Parties so notify the Indemnitor shall not affect the rights to indemnification hereunder with respect thereto so Indemnitee within 30 days after receipt of such notice. So long as written notice of a claim is given prior to the expiration of the applicable representations, warranties or covenants except to the extent that the Indemnitor is actually prejudiced by such failure. The Indemnitee shall give Indemnitor an opportunity to control negotiations toward resolution of such claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to Indemnitee, at Indemnitor's expense, and Indemnitee shall extend reasonable cooperation in connection with such defense. If the Indemnitor fails to assume control of the negotiations prior to litigation or Indemnifying Parties are conducting the defense of such action within a reasonable time, Indemnitee shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and Indemnitor shall be liable to the Indemnitee for its expenses reasonably incurred claim as provided in connection therewith which Indemnitor shall promptly pay. If the Indemnitor has reasonably concluded, based on the written advice of counsel, that there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnitee and the Indemnitor, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to the Indemnitor, in which case the reasonable fees, disbursements and charges of such counsel will be at the expense of the Indemnitor. If the Indemnitor has assumed control of the negotiations or defense and has not notified the Indemnitee that it has concluded that there exists a conflict of interest contemplated by the prior sentence, an Indemnitee may deliver a written request to Indemnitor for confirmation that the Asserted Claim is covered by the Indemnitor's indemnification obligation under this Article 10. If the Indemnitor denies that the Asserted Claim is so covered or fails to respond to such request by the twentieth day following the later of the date of delivery of the written request or the date of commencement of the action in respect thereof, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to Indemnitor to be kept informed of, and consulted with respect to, developments relating to the legal proceedings relating to the Asserted Claim and the reasonable fees, disbursements and charges of such counsel to Indemnitee will initially be at the expense of Indemnitee but with the understanding that (i) if it is subsequently determined that the Asserted Claim was covered by Indemnitor's indemnification obligation under this Article 10 or (ii) Indemnitor effects a settlement with the Person pursuing the Asserted Claim, Indemnitor shall be obligated to repay Indemnitee for all such fees, disbursements and charges. If Indemnitor is responsible for repayment pursuant to clause (i) of the immediately preceding sentence, then the repayment shall include interest on Indemnitee may retain separate co-counsel at its sole cost and expense and may participate in defense of such claim, and the repaid amounts at 6% per annum from the date of incurrence Indemnifying Parties will not consent to the date of payment. Neither Indemnitor nor Indemnitee shall settle, compromise, or make any other disposition entry of any Asserted Claims, which would judgment or might result enter into any settlement with respect to such claim unless such judgment or settlement contains an unconditional term providing for a release to be given by the claimant in any question or plaintiff to the Indemnitee of and from all liability to Indemnitee or Indemnitor, respectively, under this Article 10 without the written consent of Indemnitee or Indemnitor, respectively, which shall not be unreasonably withheld. If an Indemnitee asserts a claim for indemnification hereunder in respect of an Asserted Claim such claim. In the event the Indemnifying Parties do not assume defense of such claim as to which an action has been brought against the Indemniteeso provided, (x) the Indemnitee shall upon defend against such claim (provided that the written request of Indemnitee shall not settle such claim unless such judgment or settlement contains an unconditional term providing for a release to be given by the Indemnitor, promptly implead, commence an action over claimant in question or take such other comparable procedural step as may be available plaintiff to the Indemnitee of and from all liability in respect of such claim) and (y) the Indemnifying Parties will remain responsible for any Losses the Indemnitee may suffer as a result of such claim to make the Indemnitor full extent provided in this Section 11. Regardless of which party to such action. Notwithstanding the foregoing, the Indemnitor shall not be entitled to assume the defense of such claim, each party shall provide to the other parties on request all information and documentation reasonably necessary to support and verify any Asserted Claim (and shall be liable for the fees and expenses of counsel reasonably acceptable Losses which give rise to Indemnitor incurred by the Indemnitee in defending such Asserted Claim) if the Asserted Claim seeks an order, injunction or other equitable relief against the Indemnitee that would materially adversely affect the Business and that is the only claim made or that cannot be separated from any related claim for money damages. The Indemnitor shall also be entitled to participate in the defense of such claim at its own expense. If such claim for an orderindemnification and shall provide reasonable access to all books, injunction records and personnel in their possession or other equitable relief can under their control which would have a bearing on such claim. In cases where the potential Indemnifying Parties in question with respect to a third party claim are the Sellers generally, all determinations by the Majority Sellers with respect to actions to be so separated from that for money damages, taken or not taken by the Indemnitor Indemnifying Parties in connection with the rights or obligations of the Indemnifying Parties under this Section 11.4 shall be entitled conclusive and binding on all Sellers. This Section 11.4 does not apply to assume the defense of the portion relating to money damages. If the Closing occurs, the indemnification provided for in this Article 10 shall be the exclusive remedy of any party in respect of inaccuracy in any representations and warranties contained hereinTax Claims.

Third Party Claims, etc. If any A person entitled to make a claim ("Asserted Claim") covered by the foregoing indemnities is asserted against any indemnified party ("Indemnitee") by a third party, it of indemnification hereunder shall be a condition referred to the obligations under this Article that the Indemnitee as an "Indemnified Party." A person obligated for indemnification hereunder shall promptly give the indemnifying be referred to as an "Indemnifying Party". The Indemnifying Party shall be entitled to defend any claim, action, suit or proceeding made by any third party ("Indemnitor") notice thereof in accordance with Section 13.05against an Indemnified Party; provided, however, that the failure to so notify the Indemnitor shall not affect the rights to indemnification hereunder with respect thereto so long as written notice of a claim is given prior to the expiration of the applicable representations, warranties or covenants except to the extent that the Indemnitor is actually prejudiced by such failure. The Indemnitee shall give Indemnitor an opportunity to control negotiations toward resolution of such claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to Indemnitee, at Indemnitor's expense, and Indemnitee shall extend reasonable cooperation in connection with such defense. If the Indemnitor fails to assume control of the negotiations prior to litigation or the defense of such action within a reasonable time, Indemnitee shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and Indemnitor shall be liable to the Indemnitee for its expenses reasonably incurred in connection therewith which Indemnitor shall promptly pay. If the Indemnitor has reasonably concluded, based on the written advice of counsel, that there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnitee and the Indemnitor, then the Indemnitee Indemnified -------- ------- Party shall be entitled to retain one separate firm participate in such defense with counsel of counsel reasonably acceptable its choice and at its own expense and, if (i) the Indemnifying Party is also a party to such claim, action, suit or proceeding and the IndemnitorIndemnified Party determines in good faith that joint representation would be inappropriate, in which case (ii) the reasonable feesIndemnifying Party does not provide a competent and vigorous defense, disbursements and charges of such counsel will or (ii) the Indemnifying Party agrees, then the Indemnified Party's participation shall be at the expense of the IndemnitorIndemnifying Party. If The Indemnified Party shall provide such cooperation and access to its books, records and properties as the Indemnitor has assumed control of Indemnifying Party shall reasonably request with respect to such matter; and the negotiations or parties shall cooperate with each other in order to ensure the proper and adequate defense and has thereof. An Indemnified Party shall not notified the Indemnitee that it has concluded that there exists a conflict of interest contemplated by settle any claim subject to indemnification hereunder without the prior sentence, an Indemnitee may deliver a written request to Indemnitor for confirmation that the Asserted Claim is covered by the Indemnitor's indemnification obligation under this Article 10. If the Indemnitor denies that the Asserted Claim is so covered or fails to respond to such request by the twentieth day following the later of the date of delivery of the written request or the date of commencement of the action in respect thereof, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to Indemnitor to be kept informed of, and consulted with respect to, developments relating to the legal proceedings relating to the Asserted Claim and the reasonable fees, disbursements and charges of such counsel to Indemnitee will initially be at the expense of Indemnitee but with the understanding that (i) if it is subsequently determined that the Asserted Claim was covered by Indemnitor's indemnification obligation under this Article 10 or (ii) Indemnitor effects a settlement with the Person pursuing the Asserted Claim, Indemnitor shall be obligated to repay Indemnitee for all such fees, disbursements and charges. If Indemnitor is responsible for repayment pursuant to clause (i) of the immediately preceding sentence, then the repayment shall include interest on the repaid amounts at 6% per annum from the date of incurrence to the date of payment. Neither Indemnitor nor Indemnitee shall settle, compromise, or make any other disposition of any Asserted Claims, which would or might result in any liability to Indemnitee or Indemnitor, respectively, under this Article 10 without the written consent of Indemnitee or Indemnitor, respectivelythe Indemnifying Party, which consent shall not be unreasonably withheldwithheld or delayed. If With regard to claims of third parties for which indemnification is payable hereunder, such indemnification shall be paid by the Indemnifying Party upon the earliest to occur of; (i) the entry of a judgment against the Indemnified Party; (ii) the settlement of the claim; (iii) with respect to indemnities for tax liabilities, upon the issuance of any final resolution by a taxation authority; or (iv) with respect to claims before any administrative or regulatory authority, when the Loss is determined (regardless of whether such Loss is subject to further review or appeal); provided, however, that the -------- ------- Indemnifying Party shall pay on the Indemnified Party's demand any cost or expense reasonably incurred by the Indemnified Party in defending or otherwise dealing with such claim, and provided, further, that nothing in this paragraph -------- ------- shall limit Buyer's rights under the Escrow Agreement. To seek indemnification hereunder, an Indemnitee asserts a Indemnified Party shall notify in writing each Indemnifying Party from whom indemnification is sought of any claim for indemnification hereunder indemnification, specifying in respect of an Asserted Claim as to which an action has been brought against reasonable detail the Indemnitee, the Indemnitee shall upon the written request nature of the Indemnitor, promptly implead, commence Loss and the amount or an action over estimate of the amount thereof. Neither the giving of such notice nor the failure to give such notice shall constitute an election of remedies or take such limit an Indemnified Party in any manner in the enforcement of any other comparable procedural step as remedies that may be available to it, including the Indemnitee right to make proceed against an Indemnifying Party or give notice of a claim under the Indemnitor party to such action. Notwithstanding the foregoing, the Indemnitor shall not be entitled to assume the defense of any Asserted Claim (and shall be liable for the fees and expenses of counsel reasonably acceptable to Indemnitor incurred by the Indemnitee in defending such Asserted Claim) if the Asserted Claim seeks an order, injunction or other equitable relief against the Indemnitee that would materially adversely affect the Business and that is the only claim made or that cannot be separated from any related claim for money damages. The Indemnitor shall also be entitled to participate in the defense of such claim at its own expense. If such claim for an order, injunction or other equitable relief can be so separated from that for money damages, the Indemnitor shall be entitled to assume the defense of the portion relating to money damages. If the Closing occurs, the indemnification provided for in this Article 10 shall be the exclusive remedy of any party in respect of inaccuracy in any representations and warranties contained hereinEscrow Agreement.

Third Party Claims, etc. If Promptly after the receipt by any Indemnitee of a notice of the commencement of any action or other claim ("Asserted Claim") covered by the foregoing indemnities is asserted against any indemnified party ("Indemnitee") an Indemnitee by a third party, it shall an Indemnitee shall, if a claim with respect thereto is or may be a condition made by the Indemnitee against any Indemnifying Party pursuant to the obligations under this Article that VIII, give such Indemnifying Party written notice of the Indemnitee shall promptly give the indemnifying party ("Indemnitor") notice thereof in accordance with Section 13.05; providednature and basis of such claim, however, that but the failure to so notify an Indemnifying Party will not relieve the Indemnitor shall not affect the rights Indemnifying Party of any Liability that it may have to indemnification hereunder with respect thereto so long as written notice of a claim is given prior to the expiration of the applicable representationsany Indemnitee, warranties or covenants except to the extent that the Indemnitor is actually prejudiced by such failure. The Indemnitee shall give Indemnitor an opportunity to control negotiations toward resolution of such claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to Indemnitee, at Indemnitor's expense, and Indemnitee shall extend reasonable cooperation in connection with such defense. If the Indemnitor fails to assume control of the negotiations prior to litigation or Indemnifying Party demonstrates that the defense of such action within a reasonable time, Indemnitee shall be entitled, but not obligated, is prejudiced by the Indemnitee’s failure to assume control give such notice. Prior to the assumption by the Indemnifying Party of such negotiations or the defense of such actionclaim as described in the next sentence, the Indemnitee will defend against such claim (provided that the Indemnitee may not settle such claim). The Indemnifying Party shall have the right to defend such claim, at the Indemnifying Party’s expense and Indemnitor shall be liable with counsel of its choice, which counsel is reasonably satisfactory to the Indemnitee for its expenses reasonably incurred in connection therewith which Indemnitor shall promptly payIndemnitee. If So long as the Indemnitor has reasonably concluded, based on Indemnifying Party is conducting the written advice of counsel, that there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnitee and the Indemnitor, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to the Indemnitor, in which case the reasonable fees, disbursements and charges defense of such counsel will be at the expense of the Indemnitor. If the Indemnitor has assumed control of the negotiations or defense and has not notified the Indemnitee that it has concluded that there exists a conflict of interest contemplated by the prior sentence, an Indemnitee may deliver a written request to Indemnitor for confirmation that the Asserted Claim is covered by the Indemnitor's indemnification obligation under this Article 10. If the Indemnitor denies that the Asserted Claim is so covered or fails to respond to such request by the twentieth day following the later of the date of delivery of the written request or the date of commencement of the action claim as provided in respect thereof, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to Indemnitor to be kept informed of, and consulted with respect to, developments relating to the legal proceedings relating to the Asserted Claim and the reasonable fees, disbursements and charges of such counsel to Indemnitee will initially be at the expense of Indemnitee but with the understanding that (i) if it is subsequently determined that the Asserted Claim was covered by Indemnitor's indemnification obligation under this Article 10 or (ii) Indemnitor effects a settlement with the Person pursuing the Asserted Claim, Indemnitor shall be obligated to repay Indemnitee for all such fees, disbursements and charges. If Indemnitor is responsible for repayment pursuant to clause (i) of the immediately preceding sentence, then the repayment shall include Indemnitee may retain separate co-counsel at its sole cost and expense and may participate in defense of such claim. Provided, however, if there is or may be a conflict of interest on between the repaid amounts at 6% per annum from the date of incurrence to the date of payment. Neither Indemnitor nor Indemnitee shall settle, compromise, or make any other disposition of any Asserted Claims, which would or might result in any liability to Indemnitee or Indemnitor, respectively, under this Article 10 without the written consent of Indemnitee or Indemnitor, respectively, which shall not be unreasonably withheld. If an Indemnitee asserts a claim for indemnification hereunder in respect of an Asserted Claim as to which an action has been brought against Indemnifying Party and the Indemnitee, the Indemnitee shall upon may retain separate counsel at the written request cost and expense of the IndemnitorIndemnifying Party. In the event the Indemnifying Party does not assume defense of such claim as so provided, promptly implead, commence an action over or take such other comparable procedural step as may be available to the Indemnitee to make may defend against such at the Indemnitor Indemnifying Party’s cost and expense. Regardless of which party to such action. Notwithstanding the foregoing, the Indemnitor shall not be entitled to assume the defense of any Asserted Claim (such claim, each party shall provide to the other party on request all information and documentation reasonably necessary to defend such claim and shall be liable for the fees provide reasonable access to all books, records and expenses of counsel reasonably acceptable to Indemnitor incurred by the Indemnitee personnel in defending such Asserted Claim) if the Asserted Claim seeks an order, injunction its possession or other equitable relief against the Indemnitee that under its control which would materially adversely affect the Business and that is the only claim made or that cannot be separated from any related claim for money damages. The Indemnitor shall also be entitled to participate in have a bearing on the defense of such claim at its own expenseclaim. If such claim for an orderFor purposes of this Section, injunction or other equitable relief can be so separated from that for money damages, “Indemnitee” shall mean the Indemnitor shall be entitled to assume the defense of the portion relating to money damages. If the Closing occurs, the party seeking indemnification provided for in under this Article 10 VIII, and “Indemnifying Party” shall be mean the exclusive remedy of any party in respect of inaccuracy in any representations and warranties contained hereinfrom whom indemnification is sought under this Article VIII.

Third Party Claims, etc. If Promptly after (a) becoming aware of any fact, occurrence or event which may give rise to a claim for indemnification under this Section 12 or ("Asserted Claim"b) covered the receipt by any Indemnitee of notice of the foregoing indemnities is asserted commencement of any action or other claim against any indemnified party ("Indemnitee") such Indemnitee by a third party, it shall such Indemnitee shall, if a claim with respect thereto is or may be a condition made against any Indemnifying Party pursuant to this Section 12, give such -49- 56 Indemnifying Party written notice of the nature and basis of such claim. Prior to the obligations under this Article thirtieth day after receipt by the Indemnifying Party of a notice from the Indemnitee with respect to the commencement of an action or other claim by a third party, the Indemnitee will defend against such claim (provided that the Indemnitee shall promptly give not settle such claim). The Indemnifying Parties shall have the indemnifying party ("Indemnitor") notice thereof in accordance right to defend such claim, at the Indemnifying Parties' expense and with Section 13.05; providedcounsel of their choice reasonably satisfactory to the Indemnitee, however, provided that the failure to Indemnifying Parties so notify the Indemnitor shall not affect the rights to indemnification hereunder with respect thereto so Indemnitee within 30 days after receipt of such notice. So long as written notice of a claim is given prior to the expiration of the applicable representations, warranties or covenants except to the extent that the Indemnitor is actually prejudiced by such failure. The Indemnitee shall give Indemnitor an opportunity to control negotiations toward resolution of such claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to Indemnitee, at Indemnitor's expense, and Indemnitee shall extend reasonable cooperation in connection with such defense. If the Indemnitor fails to assume control of the negotiations prior to litigation or the defense of such action within a reasonable time, Indemnitee shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and Indemnitor shall be liable to the Indemnitee for its expenses reasonably incurred in connection therewith which Indemnitor shall promptly pay. If the Indemnitor has reasonably concluded, based on the written advice of counsel, that there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnitee and the Indemnitor, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to the Indemnitor, in which case the reasonable fees, disbursements and charges of such counsel will be at the expense of the Indemnitor. If the Indemnitor has assumed control of the negotiations or defense and has not notified the Indemnitee that it has concluded that there exists a conflict of interest contemplated by the prior sentence, an Indemnitee may deliver a written request to Indemnitor for confirmation that the Asserted Claim is covered by the Indemnitor's indemnification obligation under this Article 10. If the Indemnitor denies that the Asserted Claim is so covered or fails to respond to such request by the twentieth day following the later of the date of delivery of the written request or the date of commencement of the action in respect thereof, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to Indemnitor to be kept informed of, and consulted with respect to, developments relating to the legal proceedings relating to the Asserted Claim and the reasonable fees, disbursements and charges of such counsel to Indemnitee will initially be at the expense of Indemnitee but with the understanding that (i) if it is subsequently determined that the Asserted Claim was covered by Indemnitor's indemnification obligation under this Article 10 or (ii) Indemnitor effects a settlement with the Person pursuing the Asserted Claim, Indemnitor shall be obligated to repay Indemnitee for all such fees, disbursements and charges. If Indemnitor is responsible for repayment pursuant to clause (i) of the immediately preceding sentence, then the repayment shall include interest on the repaid amounts at 6% per annum from the date of incurrence to the date of payment. Neither Indemnitor nor Indemnitee shall settle, compromise, or make any other disposition of any Asserted Claims, which would or might result in any liability to Indemnitee or Indemnitor, respectively, under this Article 10 without the written consent of Indemnitee or Indemnitor, respectively, which shall not be unreasonably withheld. If an Indemnitee asserts a claim for indemnification hereunder in respect of an Asserted Claim as to which an action has been brought against the Indemnitee, the Indemnitee shall upon the written request of the Indemnitor, promptly implead, commence an action over or take such other comparable procedural step as may be available to the Indemnitee to make the Indemnitor party to such action. Notwithstanding the foregoing, the Indemnitor shall not be entitled to assume the defense of any Asserted Claim (and shall be liable for the fees and expenses of counsel reasonably acceptable to Indemnitor incurred by the Indemnitee in defending such Asserted Claim) if the Asserted Claim seeks an order, injunction or other equitable relief against the Indemnitee that would materially adversely affect the Business and that is the only claim made or that cannot be separated from any related claim for money damages. The Indemnitor shall also be entitled to participate in Indemnifying Parties are conducting the defense of such claim as provided in the previous sentence, the Indemnitee may retain separate co-counsel at its own expense. If sole cost and expense and may participate in defense of such claim, and the Indemnifying Parties will not consent to the entry of any judgment or enter into any settlement with respect to such claim unless such judgment or settlement (i) requires only that cash payments be made, and (ii) contains an unconditional term providing for a release to be given by the claimant in question or plaintiff to the Indemnitee of and from all liability in respect of such claim. In the event the Indemnifying Parties do not assume defense of such claim as so provided, (x) the Indemnitee shall defend against such claim (provided that the Indemnitee shall not settle such claim unless such judgment or settlement contains an order, injunction unconditional term providing for a release to be given by the claimant in question or other equitable relief can be so separated plaintiff to the Indemnifying Parties of and from that all liability in respect of such claim) and (y) the Indemnifying Parties will remain responsible for money damages, any Losses the Indemnitor Indemnitee may suffer as a result of such claim to the full extent provided in this Section 12. Regardless of which party shall be entitled to assume the defense of such claim, each party shall provide to the portion relating other parties on request all information and documentation reasonably necessary to money damages. If the Closing occurssupport and verify any Losses which give rise to such claim for indemnification and shall provide reasonable access to all books, the indemnification provided for records and personnel in this Article 10 shall be the exclusive remedy of any party in respect of inaccuracy in any representations and warranties contained hereintheir possession or under their control which would have a bearing on such claim.

Third Party Claims, etc. If Promptly after (a) becoming aware of any ----------------------- fact, occurrence or event which may give rise to a claim for indemnification under this Section 11 or ("Asserted Claim"b) covered the receipt by any Indemnitee of notice of the foregoing indemnities is asserted commencement of any action or other claim against any indemnified party ("Indemnitee") such Indemnitee by a third party, it such Indemnitee shall, if a claim with respect thereto is or may be made against any Indemnifying Party pursuant to this Section 11, give such Indemnifying Party written notice of the nature and basis of such claim; provided that the failure of an Indemnitee to give prompt notice in the manner provided herein shall be a condition to the not relieve any Indemnifying Party of its obligations under this Article that the Indemnitee shall promptly give the indemnifying party Section 11, ("Indemnitor"i) notice thereof in accordance with Section 13.05; provided, however, that the failure to so notify the Indemnitor shall not affect the rights to indemnification hereunder with respect thereto so long as written notice of a claim is given prior to the expiration of the applicable representations, warranties or covenants except to the extent that the Indemnitor unless such Indemnifying Party is actually prejudiced by such failurefailure to give prompt notice or (ii) except as provided in Section 11.2 hereof. Prior to the thirtieth day after receipt by the Indemnifying Party of a notice from the Indemnitee with respect to the commencement of an action or other claim by a third party, the Indemnitee will defend against such claim (provided that the Indemnitee shall not settle such claim). The Indemnifying Parties shall have the right to defend such claim, at the Indemnifying Parties' expense and with counsel of their choice reasonably satisfactory to the Indemnitee, provided that the Indemnifying Parties so notify the Indemnitee shall give Indemnitor an opportunity within 30 days after receipt of such notice. So long as the Indemnifying Parties are conducting the defense of such claim as provided in the previous sentence, the Indemnitee may retain separate co-counsel at its sole cost and expense and may participate in defense of such claim, and the Indemnifying Parties will not consent to control negotiations toward resolution the entry of any judgment or enter into any settlement with respect to such claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to Indemnitee, at Indemnitor's expense, and Indemnitee shall extend reasonable cooperation in connection with such defense. If the Indemnitor fails to assume control of the negotiations prior to litigation or the defense of such action within a reasonable time, Indemnitee shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and Indemnitor shall be liable to the Indemnitee for its expenses reasonably incurred in connection therewith which Indemnitor shall promptly pay. If the Indemnitor has reasonably concluded, based on the written advice of counsel, that there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnitee and the Indemnitor, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to the Indemnitor, in which case the reasonable fees, disbursements and charges of such counsel will be at the expense of the Indemnitor. If the Indemnitor has assumed control of the negotiations or defense and has not notified the Indemnitee that it has concluded that there exists a conflict of interest contemplated by the prior sentence, an Indemnitee may deliver a written request to Indemnitor for confirmation that the Asserted Claim is covered by the Indemnitor's indemnification obligation under this Article 10. If the Indemnitor denies that the Asserted Claim is so covered or fails to respond to such request by the twentieth day following the later of the date of delivery of the written request or the date of commencement of the action in respect thereof, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to Indemnitor to be kept informed of, and consulted with respect to, developments relating to the legal proceedings relating to the Asserted Claim and the reasonable fees, disbursements and charges of such counsel to Indemnitee will initially be at the expense of Indemnitee but with the understanding that (i) if it is subsequently determined that the Asserted Claim was covered by Indemnitor's indemnification obligation under this Article 10 or (ii) Indemnitor effects a settlement with the Person pursuing the Asserted Claim, Indemnitor shall be obligated to repay Indemnitee for all such fees, disbursements and charges. If Indemnitor is responsible for repayment pursuant to clause (i) of the immediately preceding sentence, then the repayment shall include interest on the repaid amounts at 6% per annum from the date of incurrence to the date of payment. Neither Indemnitor nor Indemnitee shall settle, compromise, or make any other disposition of any Asserted Claims, which would or might result in any liability to Indemnitee or Indemnitor, respectively, under this Article 10 without the written consent of Indemnitee or Indemnitor, respectivelyeach Indemnitee, which consent shall not be unreasonably withheld. If an Indemnitee asserts a In the event the Indemnifying Parties do not assume defense of such claim for indemnification hereunder in respect of an Asserted Claim as to which an action has been brought against the Indemniteeso provided, (x) the Indemnitee shall upon defend against such claim provided that the Indemnitee shall not settle such claim without the prior written request consent of the Indemnitor, promptly implead, commence an action over or take such other comparable procedural step as may be available to the Indemnitee to make the Indemnitor party to such action. Notwithstanding the foregoing, the Indemnitor Indemnifying Party which consent shall not be entitled unreasonably withheld and (y) the Indemnifying Parties will remain responsible for any Losses the Indemnitee may suffer as a result of such claim to the full extent provided in this Section 11. Regardless of which party shall assume the defense of such claim, each party shall provide to the other parties on request all information and documentation reasonably necessary to support and verify any Asserted Claim (and shall be liable for the fees and expenses of counsel reasonably acceptable Losses which give rise to Indemnitor incurred by the Indemnitee in defending such Asserted Claim) if the Asserted Claim seeks an order, injunction or other equitable relief against the Indemnitee that would materially adversely affect the Business and that is the only claim made or that cannot be separated from any related claim for money damages. The Indemnitor shall also be entitled to participate in the defense of such claim at its own expense. If such claim for an orderindemnification and shall provide reasonable access to all books, injunction records and personnel in their possession or other equitable relief can be so separated from that for money damages, the Indemnitor shall be entitled to assume the defense of the portion relating to money damages. If the Closing occurs, the indemnification provided for in this Article 10 shall be the exclusive remedy of any party in respect of inaccuracy in any representations and warranties contained hereinunder their control which would have a bearing on such claim.

Third Party Claims, etc. (a) If any claim ("Asserted Claim") covered by the foregoing indemnities is asserted against any indemnified party ("Indemnitee") by a third party), it shall be a condition to the obligations under this Article that the Indemnitee shall promptly give the indemnifying party ("Indemnitor") notice thereof in accordance with Section 13.05; provided, however, that the failure to so notify the Indemnitor shall not affect the rights to indemnification hereunder with respect thereto so long as written notice of a claim is given prior to the expiration of the applicable representations, warranties or covenants except to the extent that the Indemnitor is actually prejudiced by such failure. The Indemnitee shall give Indemnitor an opportunity to control negotiations toward resolution of such claim without the necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to Indemnitee, at Indemnitor's expense, and Indemnitee shall extend reasonable cooperation in connection with such defense. In addition, the Indemnitee shall be permitted to join in the defense and settlement of the Asserted Claim and to employ counsel at its expense. If the Indemnitor fails to assume control of the negotiations prior to litigation or the defense of to defend such action within a reasonable time, Indemnitee shall be entitled, but not obligated, to assume control of such negotiations or defense of such action, and Indemnitor shall be liable to the Indemnitee for its expenses reasonably incurred in connection therewith which Indemnitor shall promptly pay. If the Indemnitor has reasonably concluded, based on the written advice of counsel, that there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnitee and the Indemnitor, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to the Indemnitor, in which case the reasonable fees, disbursements and charges of such counsel will be at the expense of the Indemnitor. If the Indemnitor has assumed control of the negotiations or defense and has not notified the Indemnitee that it has concluded that there exists a conflict of interest contemplated by the prior sentence, an Indemnitee may deliver a written request to Indemnitor for confirmation that the Asserted Claim is covered by the Indemnitor's indemnification obligation under this Article 10. If the Indemnitor denies that the Asserted Claim is so covered or fails to respond to such request by the twentieth day following the later of the date of delivery of the written request or the date of commencement of the action in respect thereof, then the Indemnitee shall be entitled to retain one separate firm of counsel reasonably acceptable to Indemnitor to be kept informed of, and consulted with respect to, developments relating to the legal proceedings relating to the Asserted Claim and the reasonable fees, disbursements and charges of such counsel to Indemnitee will initially be at the expense of Indemnitee but with the understanding that (i) if it is subsequently determined that the Asserted Claim was covered by Indemnitor's indemnification obligation under this Article 10 or (ii) Indemnitor effects a settlement with the Person pursuing the Asserted Claim, Indemnitor shall be obligated to repay Indemnitee for all such fees, disbursements and charges. If Indemnitor is responsible for repayment pursuant to clause (i) of the immediately preceding sentence, then the repayment shall include interest on the repaid amounts at 6% per annum from the date of incurrence to the date of payment. Neither Indemnitor nor Indemnitee shall settle, compromise, or make any other disposition of any Asserted Claims, which would or might result in any liability to Indemnitee or Indemnitor, respectively, under this Article 10 without the written consent of Indemnitee or Indemnitor, respectively, which shall not be unreasonably withheld. . (b) If an Indemnitee asserts a claim for indemnification hereunder in respect of an Asserted Claim as to which an action has been brought against the Indemnitee, the Indemnitee shall upon the written request of the Indemnitor, promptly implead, commence an action over or take such other comparable procedural step as may be available to the Indemnitee to make the Indemnitor party to such action. Notwithstanding the foregoing, the Indemnitor shall not be entitled to assume the defense of any Asserted Claim (and shall be liable for the fees and expenses of counsel reasonably acceptable to Indemnitor incurred by the Indemnitee in defending such Asserted Claim) if the Asserted Claim seeks an order, injunction or other equitable relief against the Indemnitee that would materially adversely affect the Business and that is the only claim made or that cannot be separated from any related claim for money damages. The Indemnitor shall also be entitled to participate in the defense of such claim at its own expense. If such claim for an order, injunction or other equitable relief can be so separated from that for money damages, the Indemnitor shall be entitled to assume the defense of the portion relating to money damages. If the Closing occurs, the indemnification provided for in this Article 10 shall be the exclusive remedy of any party in respect of any inaccuracy in any representations and warranties contained herein.