Common use of Third Person Claims Clause in Contracts

Third Person Claims. In the event that any claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X).

Third Person Claims. In (i) Promptly after any party hereto (hereinafter the event that "Indemnified Party") has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to Section 9.1 or Section 9.2 hereof (hereinafter the "Indemnifying Party"), give the Indemnifying Party written notice of such claim, specifying Third Party Claim describing in reasonable detail the nature of such claim and Third Party Claim, a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the amount or of damages attributable to the estimated amount thereof Third Party Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party's request for indemnification under this Agreement; provided, -------- however, that the failure of the Indemnified Party to give timely notice ------- hereunder shall relieve the Indemnifying Party of its indemnification obligations under this Agreement to the extent, but only to the extent that, such failure materially prejudices the Indemnifying Party's ability to defend such claim. Within fifteen (15) days after receipt of such notice (the “Claim Notice”"Election Period"). The , the Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (ia) whether or not it the Indemnifying Party disputes its potential liability to the Indemnified Party hereunder under this Section 9 with respect to such claim; that Third Party Claim and (b) if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to that Third Party Claim, whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against that Third Party Claim. (ii) if it If the Indemnifying Party does not dispute such liabilityits potential liability to the Indemnified Party and notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim through counsel of its own choosing which is consented to by the Indemnified Party (which consent shall not be unreasonably delayed or withheld), whether or not it desiresthen the Indemnifying Party shall have the right to defend, at its sole cost and expense, that Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to defend a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 9.3(ii) and the Indemnified Party against such claimwill furnish the Indemnifying Party with all information in its possession with respect to that Third Party Claim and otherwise cooperate with the Indemnifying Party in the defense of that Third Party Claim; provided, however, that the Indemnifying -------- ------- Party shall not enter into any settlement with respect to any Third Party Claim that purports to limit the activities of, or otherwise restrict in any way, any Indemnified party Party or any affiliate of any Indemnified Party without the prior consent of that Indemnified Party (which consent may be withheld in the sole discretion of that Indemnified Party). The Indemnified Party is hereby authorized prior authorized, at the sole cost and expense of the Indemnifying Party, to and file, during the Notice Period to file Election Period, any motion, answer or other pleading, submission or document which it pleadings that the Indemnified Party shall deem necessary or appropriate to protect its interestsinterests or those of the Indemnifying Party. In The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the event Indemnifying Party pursuant to this Section 9.3(ii) and will bear its own costs and expenses with respect to that participation; provided, however, that -------- ------- if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, and, on its written notification of that employment, the Indemnifying Party shall not have the right to assume or continue the defense of such action on behalf of the Indemnified Party. (iii) If the Indemnifying Party (a) within the Election Period (1) disputes its potential liability to the Indemnified Party under this Section 9, (2) elects not to defend the Indemnified Party pursuant to Section 9.3(ii) or (3) fails to notify the Indemnified Party that the Indemnifying Party notifies elects to defend the Indemnified Party within the Notice Period that it does not dispute such liability and desires pursuant to Section 9.3(ii) or (b) elects to defend against such claim the Indemnified Party pursuant to Section 9.3(ii) but fails diligently and promptly to prosecute or demandsettle the Third Party Claim, then, except as hereinafter provided, then the Indemnifying Indemnified Party shall have the right to defend such claim or demand defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly settled or and vigorously prosecuted by the Indemnified Party to a final conclusionconclusion or settled, but any settlement shall require the consent of the Indemnifying party, which consent shall not be unreasonably delayed or withheld. The Indemnified Party shall have full control of such defense and proceedings. Notwithstanding the foregoing, if the Indemnifying Party has delivered a written notice to the Indemnified Party to the effect that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 9 and if such dispute is resolved in such a manner as favor of the Indemnifying Party, the Indemnifying Party shall not be required to avoid any risk bear the costs and expenses of the Indemnified Party becoming subject Party's defense pursuant to liability. If this Section 9.3 or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party desires to shall reimburse the Indemnifying Party in full for all reasonable costs and expenses of such litigation. The Indemnifying Party may participate in, but not control, any such defense or settlementsettlement controlled by the Indemnified Party pursuant to this Section 9.3(iii), it may do so at its own cost and expense. If the Indemnifying Party disputes shall bear its liability own costs and expenses with respect to such claimparticipation. (iv) The parties hereto will make appropriate adjustments for any Tax benefits, Tax detriments or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and insurance proceeds in determining the amount of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, indemnification obligation under this Section 9. All indemnification payments under this Section 9 shall be conclusively deemed adjustments to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)consideration provided for herein.

Third Person Claims. (a) In the event that any claim order for which a party providing to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly, but in any event within ten (10) days, after receipt by such Indemnified Party of written notice of the third Person claim, which such notification must include a copy of the written notice of the third Person claim that was received by the Indemnified Party (the “Indemnifying PartyThird Person Claim Notice”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person). Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor, promptly, but in any event within five (5) Business Days, after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnifying Party Indemnitor with a copy of the complaint promptly, but in any event within five (5) Business Days, after receipt thereof and shall deliver to the Indemnitor promptly, but in any event within seven (7) Business Days, after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Subject to Section 11.1, specifying the nature failure of any Indemnified Party to promptly provide a Third Person Claim Notice as required by this Section 9.4 shall not affect such claim and the amount or the estimated amount thereof Indemnified Party’s rights under this Article IX except to the extent then feasible (which estimate shall not be conclusive such failure is actually materially prejudicial to the rights and obligations of the final amount of such claimIndemnitor. (b) (In the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt event of the Claim Notice (the “Notice Period”) to notify initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes by a third Person that is exclusively for civil monetary damages at law, if the Indemnitor acknowledges in writing its liability obligation to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend indemnify the Indemnified Party against any and all Losses and Expenses that may result from such claim, the Indemnitor shall have the sole and absolute right after the receipt of a Third Person Claim Notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to and during cooperate fully with each other in connection with the Notice Period defense, negotiation or settlement of any such proceeding, claim or demand. Prior to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies time the Indemnified Party within is notified by the Notice Period that it does not dispute Indemnitor as to whether the Indemnitor will assume the defense of such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Indemnified Party shall have use commercially reasonable efforts to take actions reasonably necessary to timely preserve the right collective rights of the parties with respect to such proceeding, claim or demand, including responding timely to legal process. To the extent the Indemnitor elects not to defend such proceeding, claim or demand (or fails to confirm its election) within thirty (30) days after the giving by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnitor of a Third Person Claim Notice, the Indemnified Party desires may retain counsel reasonably acceptable to participate inthe Indemnitor, but at the expense of the Indemnitor, and control the defense of, or otherwise deal with, such proceeding, claim or demand. Regardless of which party assumes the defense of such proceeding, claim or demand, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information that are relevant to such proceeding, claim or demand, and making each parties’ employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not controlthe Indemnitor assumes the defense of such proceeding, claim or demand, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or consent to a settlement of, or the entry of any judgment arising from, any such defense proceeding, claim or settlementdemand without the Indemnitor’s prior written consent (which consent shall not be unreasonably withheld, it may do so at its own cost and expense. If conditioned or delayed) unless such settlement or judgment includes as an unconditional term thereof the Indemnifying Party disputes its release of the Indemnitor from all liability with respect to such claimproceeding, claim or demand, in which event no such consent shall be required. The Indemnitor shall not consent to a settlement of, or elects the entry of any judgment arising from, any such proceeding, claim or demand without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or judgment (a) relates solely to defend against such claim, whether by not giving timely notice monetary damages for which the Indemnitor shall be responsible and (b) includes as provided above or otherwise, an unconditional term thereof the release of the Indemnified Party from all liability with respect to such proceeding, claim or demand, in which event no such consent shall be required. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within ten (10) days after the date of such notice. (c) The party that has assumed the control or defense of any such proceeding, claim or demand made by a third Person against the other party shall (a) provide the other party with the right but not to participate in any meetings or negotiations with any Governmental Body or other third Person and reasonable advance notice of any such meetings or negotiations, (b) provide the obligation other party with the right to defend against review in advance and provide comments on any draft or final documents proposed to be submitted to any Governmental Body or other third Person, and (c) keep the other party reasonably informed with respect to such proceeding, demand or claim, including providing copies of all documents provided to, or received from, any Governmental Body or any other third Person in connection with such proceeding, demand or claim. The Buyer Group Members, on the one hand, and the amount Seller Group Members, on the other hand, covenant and agree to maintain the confidence of all such drafts and comments provided by the other. To the extent of any such claiminconsistency between this Section 9.4 and Section 6.1(d) with respect to Taxes, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, provisions of Section 6.1(d) shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)control.

Third Person Claims. In the event that any claim for which a party providing indemnification (the “Indemnifying Party”a) would be liable Subject to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”Section 11.4(b). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any Third Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnitor shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnified Party in connection therewith; provided, that: (i) the Indemnitor may participate, through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnified Party has so elected to conduct and control the defense thereof; and (ii) the Indemnified Party shall not, without the written consent of the Indemnitor (which written consent shall not be unreasonably withheld), pay, compromise or settle any such Third Person Claim, except that no such consent shall be required if, following a written request from the Indemnified Party, the Indemnitor shall fail, within fourteen (14) days after the making of such request, to acknowledge and agree in writing that, if such Third Person Claim shall be adversely determined, such Indemnitor has an obligation to defend provide indemnification hereunder to such Indemnified Party. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such Third Person Claim without such consent, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless such consent is unreasonably withheld. (b) If any Third Person Claim against such claim, any Indemnified Party involves a claim for money damages and the amount of such money damages, together with the aggregate amount of any Losses or Expenses previously paid or payable by the Indemnitor hereunder, is less than $1,500,000 and, where Seller is the Indemnitor, (i) will have no continuing effect in any material respect on the Business or the assets, properties or operations of the Company and (ii) does not involve a Governmental Body or Governmental Permit, then the Indemnitor shall have the right to conduct and control, through counsel of its choosing, the defense, compromise or settlement of any such claimThird Person Claim against such Indemnified Party as to which indemnification will be sought by any Indemnified Party from any Indemnitor hereunder if the Indemnitor has acknowledged and agreed in writing that, or if the same is adversely determined, the Indemnitor has an obligation to provide indemnification to the Indemnified Party in respect thereof, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be contested reasonably requested by the Indemnifying Party or by Indemnitor in connection therewith; provided, that the Indemnified PartyParty may participate, then that portion thereof through counsel chosen by it and at its own expense, in the defense of any such Third Person Claim as to which the Indemnitor has so elected to conduct and control the defense thereof. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay, settle or compromise any such defense is unsuccessfulThird Person Claim, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder unless the Indemnified Party shall have sought the consent of the Indemnitor to such payment, settlement or compromise and such consent was unreasonably withheld, in which event no claim for indemnity therefor hereunder shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)waived.

Third Person Claims. In (a) Notwithstanding anything to the event that any claim contrary contained in Section 8.3, in order for which a party providing to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly, but in any event within ten (10) days, after receipt by such Indemnified Party of written notice of the third Person claim, which notification must include a copy of the written notice of the third Person claim that was received by the Indemnified Party (the “Indemnifying PartyThird Person Claim Notice”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person). Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor, promptly, but in any event within five (5) Business Days, after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnifying Party Indemnitor with a copy of the complaint promptly, but in any event within five (5) Business Days, after receipt thereof and shall deliver to the Indemnitor promptly, but in any event within seven (7) Business Days, after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Subject to Section 10.1, specifying the nature failure of any Indemnified Party to promptly provide a Third Person Claim Notice as required by this Section 8.4 shall not affect such claim and the amount or the estimated amount thereof Indemnified Party’s rights under this Article VIII except to the extent then feasible (which estimate shall not be conclusive such failure is actually and materially prejudicial to the rights and obligations of the final amount of such claimIndemnitor. (b) (In the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt event of the Claim Notice (the “Notice Period”) to notify initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of a Third Person Claim Notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to and during cooperate fully with each other in connection with the Notice Period defense, negotiation or settlement of any such proceeding, claim or demand. Prior to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies time the Indemnified Party within is notified by the Notice Period that it does not dispute Indemnitor as to whether the Indemnitor will assume the defense of such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Indemnified Party shall have take all actions reasonably necessary to timely preserve the right collective rights of the parties with respect to such proceeding, claim or demand, including responding timely to legal process. To the extent the Indemnitor elects not to defend such proceeding, claim or demand (or fails to confirm its election) within fifteen (15) days after the giving by appropriate proceedingsthe Indemnified Party to the Indemnitor of a Third Person Claim Notice, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of, or otherwise deal with, such proceeding, claim or demand. Regardless of which proceedings party assumes the defense of such proceeding, claim or demand, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information that are relevant to such proceeding, claim or demand, and making each parties’ employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnitor assumes the defense of such proceeding, claim or demand, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such proceeding, claim or demand without the Indemnitor’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnitor shall not consent to a settlement of, or the entry of any judgment arising from, any such proceeding, claim or demand without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or judgment (i) relates solely to monetary damages for which the Indemnitor shall be promptly settled or prosecuted to a final conclusion, in such a manner responsible and (ii) includes as to avoid any risk an unconditional term thereof the release of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its from all liability with respect to such claimproceeding, claim or demand, in which event no such consent shall be required. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or elects not a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to defend against such claim, whether each separate matter alleged to be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within fifteen (15) days after the date of such notice. (c) The party that has assumed the control or defense of any such proceeding, claim or demand made by a third Person against the other party shall (i) provide the other party with the right to participate in any meetings or negotiations with any Governmental Authority or other third Person and reasonable advance notice of any such meetings or negotiations, (ii) provide the other party with the right to review in advance and provide comments on any draft or final documents proposed to be submitted to any Governmental Authority or other third Person, and (iii) keep the other party reasonably informed with respect to such proceeding, demand or claim, including providing copies of all documents provided to, or if received from, any Governmental Authority or any other third Person in connection with such proceeding, demand or claim. Buyer Group Members, on the same be contested one hand, and Seller Group Members, on the other hand, covenant and agree to maintain the confidence of all such drafts and comments provided by the Indemnifying Party or by other. (d) To the Indemnified Partyextent of any inconsistency between this Section 8.4 and Section 6.1(c) with respect to Taxes, then that portion thereof as to which such defense is unsuccessful, the provisions of Section 6.1(c) shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)control.

Third Person Claims. In (a) Notwithstanding anything to the event that any claim contrary contained in Section 9.3, in order for which a party providing to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly, but in any event within ten (10) days, after receipt by such Indemnified Party of written notice of the third Person claim, which such notification must include a copy of the written notice of the third Person claim that was received by the Indemnified Party (the “Indemnifying PartyThird Person Claim Notice”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person). Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor, promptly, but in any event within five (5) Business Days, after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnifying Party Indemnitor with a copy of the complaint promptly, but in any event within five (5) Business Days, after receipt thereof and shall deliver to the Indemnitor promptly, but in any event within seven (7) Business Days, after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, specifying subject to Section 11.1, the nature failure of any Indemnified Party to promptly provide a Third Person Claim Notice as required by this Section 9.4 shall not affect such claim and the amount or the estimated amount thereof Indemnified Party’s rights under this Article IX except to the extent then feasible (which estimate shall not be conclusive such failure is actually prejudicial to the rights and obligations of the final amount of such claimIndemnitor. (b) (In the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt event of the Claim Notice (the “Notice Period”) to notify initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of a Third Person Claim Notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior to Party may participate in any such proceeding with counsel of its choice and during the Notice Period to file any motionat its expense; provided, answer or other pleadingfurther, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies Indemnitor shall not have the right to control, defend against, negotiate, settle or otherwise deal with such proceeding, claim, or demand if it (i) is a third Person claim in which the Indemnitor is also a party and joint representation would present a material conflict or there may be legal defenses available to the Indemnified Party within which are different from or additional to those available to the Notice Period Indemnitor, or (ii) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that it does not dispute the Indemnitor failed or is failing to vigorously prosecute or defend. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such liability and desires proceeding, claim or demand. Prior to defend against the time the Indemnified Party is notified by the Indemnitor as to whether the Indemnitor will assume the defense of such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Indemnified Party shall have take all actions reasonably necessary to timely preserve the right collective rights of the parties with respect to such proceeding, claim or demand, including responding timely to legal process. To the extent the Indemnitor does not elect to defend such proceeding, claim or demand (or fails to confirm its election) within thirty (30) days after the giving by appropriate proceedingsthe Indemnified Party to the Indemnitor of a Third Person Claim Notice, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of, or otherwise deal with, such proceeding, claim or demand. Regardless of which proceedings party assumes the defense of such proceeding, claim or demand, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information that are relevant to such proceeding, claim or demand, and making each parties’ employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnitor assumes the defense of such proceeding, claim or demand, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such proceeding, claim or demand without the Indemnitor’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnitor shall not consent to a settlement of, or the entry of any judgment arising from, any such proceeding, claim or demand without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or judgment (a) relates solely to monetary damages for which the Indemnitor shall be promptly settled or prosecuted to a final conclusion, in such a manner responsible and (b) includes as to avoid any risk an unconditional term thereof the release of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its from all liability with respect to such claimproceeding, claim or demand, in which event no such consent shall be required. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or elects not to defend against such claima settlement shall have been consummated, whether by not giving timely notice as provided above or otherwise, the Indemnified Party and the Indemnitor shall have arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within ten (10) days thereafter. (c) The party that has assumed the control or defense of any such proceeding, claim or demand made by a third Person against the other party shall (a) provide the other party with the right but not to participate in any meetings or negotiations with any Governmental Body or other third Person and reasonable advance notice of any such meetings or negotiations, (b) provide the obligation other party with the right to defend against review in advance and provide comments on any draft or final documents proposed to be submitted to any Governmental Body or other third Person, and (c) keep the other party reasonably informed with respect to such proceeding, demand or claim, including providing copies of all documents provided to, or received from, any Governmental Body or any other third Person in connection with such proceeding, demand or claim. The Buyer Group Members, on the one hand, and the amount Seller Group Members, on the other hand, covenant and agree to maintain the confidence of all such drafts and comments provided by the other, except as required by applicable Law. To the extent of any such claiminconsistency between this Section 9.4 and Section 6.1(c) with respect to Taxes, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, provisions of Section 6.1(c) shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)control.

Third Person Claims. In (a) If any Indemnified Party receives notice of the event that assertion by any third party of any claim for which or of the commencement by any such third party of any Action (any such claim or Action being referred to herein as a party providing indemnification (the “Indemnifying PartyThird Person Claim”) would with respect to which another party hereto is or may be liable obligated to a party or any of its officers, directors, partners, employees, agents or representatives entitled to provide indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personhereunder, the Indemnified Party shall promptly notify provide the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Indemnitor with a Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimThird Person Claim; provided, however, that the Indemnified failure to provide such notice shall not relieve the obligation of the Indemnitor to provide indemnification hereunder, except to the extent the defense of such Third Person Claim by the Indemnitor is materially prejudiced by such failure. The parties hereto agree to reasonably cooperate with each other in connection with the defense, negotiation or settlement of any Third Person Claim and to make available to the other party all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is hereby authorized prior reasonably required by the other party. (b) Except with respect to and during any Special Claim (as defined below) or a Tax contest (which shall be handled pursuant to Section 9.2(c)), the Indemnitor shall have 60 days after receipt of the Claim Notice Period (unless the claim or Action requires a response before the expiration of such 60-day period, in which case the Indemnitor shall have until the date that is 10 days before the required response date) to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event acknowledge (in writing) that the Indemnifying Party notifies Indemnitor may be obligated to indemnify the Indemnified Party within the Notice Period that it does not dispute such liability in respect of any Losses and desires to defend against Expenses payable hereunder in respect of such claim to the extent ultimately adversely determined, subject to the limitations set forth in this ARTICLE XII (provided that such limitations shall not apply to Indemnitor’s Expenses in connection therewith, all of which such expenses shall be the sole responsibility of Indemnitor), and undertake, conduct and control, through counsel of its own choosing, and at its expense, the settlement or demanddefense thereof, then, except as hereinafter and the Indemnified Party shall cooperate with the Indemnitor in connection therewith; provided, that: (i) the Indemnifying Indemnitor shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by the Indemnitor (provided that the fees and expenses of such counsel shall have not be borne by the right Indemnitor or constitute Expenses); and (ii) the Indemnitor shall not pay, compromise or settle any Third Person Claim without the Indemnified Party’s prior written consent (not to defend be unreasonably withheld, conditioned or delayed if the Indemnitor is paying a majority of the amount of such payment, settlement or compromise or in the Indemnified Party’s sole discretion if not) unless the proposed payment, compromise or settlement (A) involves solely the payment of money damages by the Indemnitor, (B) includes, as an unconditional term of such payment, compromise or settlement, an unconditional and irrevocable release by the Person(s) asserting such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, from any such defense liabilities or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability obligations with respect to such claim, (C) does not impose any restriction on the Indemnified Party or elects any injunctive or other equitable relief against the Indemnified Party, and (D) does not include or require a finding or admission of any wrongdoing. So long as the Indemnitor continues to defend against such claim, whether by not giving timely notice as provided above or otherwisethe Third Person Claim in good faith, the Indemnified Party shall have not pay, compromise or settle such claim without the right but Indemnitor’s written consent, which consent shall not be unreasonably withheld or delayed. For purposes of this Agreement, “Special Claim” shall mean any Third Person Claim that (i) involves any reasonable possibility of criminal liability or an action by any Governmental Body, in each case, primarily involving the obligation Business (as opposed to defend against such claimother businesses of Xxxxxxx), and (ii) seeks as a remedy the amount imposition of any such claim, or if a material equitable remedy that would reasonably be expected to be binding on the same be contested by the Indemnifying Indemnified Party or by (iii) if determined adversely, would likely result in the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be Party(ies) bearing a liability majority of the Indemnifying Party hereunder reasonably foreseeable Losses and Expenses (subject, if it has timely disputed liability, to a determination that after taking into account the disputed liability is covered by limitations in this Article XARTICLE XII).

Third Person Claims. In the event that any claim for which (a) For a party providing indemnification (the “Indemnifying Party”) would Person to be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to any indemnification hereunder (provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the “Indemnified Party”) is asserted against or sought to be collected by a third person, the such Indemnified Party shall promptly must notify the Indemnifying Indemnitor in writing, and in reasonable detail, of the third Person claim promptly after receipt by such Indemnified Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive written notice of the final amount of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such third Person claim; provided, however, that the failure of any Indemnified party Party to give the notice promptly as required by this Section 9.4(a) shall not affect such Indemnified Party’s rights under this Section 9 except to the extent such failure is hereby authorized prior actually prejudicial to the Indemnitor’s rights and during the Notice Period to file any motionobligations hereunder. Thereafter, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party shall deliver to the Indemnitor, within five days after the Notice Period that it does not dispute such liability Indemnified Party’s receipt thereof, copies of all notices and desires documents (including court papers) received by the Indemnified Party relating to defend against such claim or demandthe third Person claim. Notwithstanding the foregoing, then, except as hereinafter providedif a Person is physically served with a complaint with regard to a third Person claim, the Indemnifying Indemnified Party must notify the Indemnitor with a copy of the complaint within five days after receipt thereof and shall deliver to the Indemnitor within five days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such earlier time as may be necessary to enable the Indemnitor to respond to the court proceedings on a timely basis). (b) If any legal proceeding is initiated against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to defend such claim or demand be represented by appropriate proceedingscounsel of its choice and, which proceedings if the Indemnitor shall be promptly settled or prosecuted acknowledge in writing to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject that the Indemnitor shall be obligated to liability. If indemnify the Indemnified Party desires under the terms and conditions of this Section 9 in connection with such legal proceeding, to participate in, but not control, defend against, and otherwise deal with any proceeding, claim, or demand that relates to any Losses indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such defense or settlement, it may do so proceeding with counsel of its choice and at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such Indemnitor does not assume control of the defense of a third Person claim, or elects not abandons or fails to defend against such diligently pursue the defense of a third Person claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but to control such defense. The Party controlling the defense of such third Person claim (the “Controlling Party”) shall keep the non-Controlling Party reasonably advised of the status of such third Person claim and the defense thereof and shall consider in good faith the recommendations made by the non-Controlling Party with respect thereto. To the extent the Indemnitor elects not the obligation to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, at the Indemnitor’s expense, and control the defense of such proceeding. If the Indemnitor elects to assume control of the defense of a third Person claim, any fees and expenses of legal counsel employed by the Indemnified Party with respect to such third Person claim shall be considered Losses for which the Indemnified Party is entitled to indemnification under this Section 9 only if the named parties in such third Person claim include both the Indemnitor and the Indemnified Party and the Indemnified Party has been advised by legal counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnitor (provided, that in such situation, the Indemnified Party shall not be entitled to employ more than one primary law firm and local counsel, as necessary). Neither the Indemnitor nor the Indemnified Party may settle or compromise any such proceeding that obligates the other Party to pay money, to perform obligations or to admit liability without the consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed; provided, that the consent of the Indemnified Party shall not be required if the Indemnitor agrees in writing to pay any amounts payable pursuant to such settlement or compromise and such settlement or compromise includes a complete written release of the Indemnified Party from further liability and does not impose any injunctive relief or other operational restrictions on the Indemnified Party. Notwithstanding anything herein to the contrary, if a Buyer Group Member is subject to a claim initiated by a third Person that, (i) seeks an injunction or other equitable relief that would reasonably be expected to materially interfere with Buyer’s or any of its Affiliates’ operation of any of their respective businesses, or (ii) would reasonably be expected to materially interfere with or materially and adversely affect the business of Buyer or any of its Affiliates (including as a result of the material deterioration of a customer relationship) if determined adversely to a Buyer Group Member or if it continues unresolved, then in each case the Indemnitor shall not be entitled to take control of the defense and investigation of such claim and such Buyer Group Member shall be entitled to compromise, settle or discharge such claim, and subject to the amount approval of the Indemnitor, which shall not be unreasonably withheld, conditioned or delayed. (c) The Parties shall cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. Such cooperation shall include the retention and the provision of records and information that is reasonably relevant to such third Person claim, and making employees available in a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (d) After any final Court Order shall have been rendered and the time in which to appeal therefrom has expired, or if a settlement shall have been consummated, or the same Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be contested indemnifiable by the Indemnifying Party or by Indemnitor hereunder, the Indemnitor shall pay all of the sums so owing to the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)wire transfer within 10 Business Days.

Third Person Claims. In the event that 8.3.1 Promptly after a DoveBid Indemnitee has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Person Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify DoveBid Indemnitee shall, as a condition precedent to a claim with respect thereto being made against the Indemnifying Party Shareholders, give the Representative written notice of such claim, specifying Third Person Claim describing in reasonable detail the nature of such claim and Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount or of Damages attributable to the estimated amount thereof Third Person Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (and the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of basis for the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimDoveBid Indemnitee's request for indemnification under this Agreement; provided, however, that the Indemnified party is hereby authorized prior failure of the DoveBid Indemnitee to and during give timely notice hereunder shall relieve the Notice Period Shareholders of their indemnification obligations under this Agreement to file any motionthe extent, answer or other pleadingbut only to the extent that, submission or document which it shall deem necessary or appropriate to protect its interests. In such failure materially prejudices the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires Shareholders' ability to defend against such claim claim. 8.3.2 DoveBid shall defend any Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or demand, then, except as hereinafter providedarbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder. If DoveBid fails to defend such Third Person Claim, the Indemnifying Party Shareholders shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of assume the Indemnified Party becoming subject to liabilitydefense thereof. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party The Representative shall have the right but to receive copies of all pleadings, notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by the Representative does not affect any privilege relating to the obligation to defend against such claimDoveBid Indemnitee, and may participate in settlement negotiations with respect to the Third Person Claim. No DoveBid Indemnitee shall enter into any settlement of a Third Person Claim without the prior written consent of the Representative (which consent shall not be unreasonably withheld), provided, that if the Representative shall have consented in writing to any such settlement, then the Representative shall have no power or authority to object to any Claim by any DoveBid Indemnitee for indemnity under Article VIII for the amount of any such claimsettlement; and the Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages they may incur arising out of, resulting from or if the same be contested caused by the Indemnifying Third- Party or by Claim to the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this fullest extent provided in Article X)VIII.

Third Person Claims. In the event that 8.3.1 Promptly after a DoveBid Indemnitee has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Person Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify DoveBid Indemnitee shall, as a condition precedent to a claim with respect thereto being made against the Indemnifying Party Shareholders, give the Representative written notice of such claim, specifying Third Person Claim describing in reasonable detail the nature of such claim and Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount or of Damages attributable to the estimated amount thereof Third Person Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (and the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of basis for the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimDoveBid Indemnitee's request for indemnification under this Agreement; provided, however, that the Indemnified party is hereby authorized prior failure of the DoveBid Indemnitee to and during give timely notice hereunder shall relieve the Notice Period Shareholders of their indemnification obligations under this Agreement to file any motionthe extent, answer or other pleadingbut only to the extent that, submission or document which it shall deem necessary or appropriate to protect its interests. In such failure materially prejudices the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires Shareholders' ability to defend against such claim claim. 8.3.2 DoveBid shall defend any Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or demand, then, except as hereinafter providedarbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder. If DoveBid fails to defend such Third Person Claim, the Indemnifying Party Shareholders shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of assume the Indemnified Party becoming subject to liabilitydefense thereof. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party The Representative shall have the right but to receive copies of all pleadings, notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by the Representative does not affect any privilege relating to the obligation to defend against such claimDoveBid Indemnitee, and may participate in settlement negotiations with respect to the Third Person Claim. No DoveBid Indemnitee shall enter into any settlement of a Third Person Claim without the prior written consent of the Representative (which consent shall not be unreasonably withheld), provided, that if the Representative shall have consented in writing to any such settlement, then the Representative shall have no power or authority to object to any Claim by any DoveBid Indemnitee for indemnity under Article VIII for the amount of any such claimsettlement; and the Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages they may incur arising out of, resulting from or if the same be contested caused by the Indemnifying Party or by Third Person Claim to the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this fullest extent provided in Article X)VIII.

Third Person Claims. In the event that (i) Any Indemnified Party seeking indemnification under this Agreement resulting from or arising out of a Claim or demand made or threatened, or which such Indemnified Party reasonably anticipates will be made or threatened, by any claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted Person against or sought to be collected by a third person, the Indemnified Party (a “Third Person Claim”) shall deliver, promptly notify the Indemnifying Party after becoming aware of such claimThird Person Claim, specifying the nature of such claim and the amount to Parent written notice thereof (including all related information received by or the estimated amount thereof known to the extent then feasible Indemnified Party) after such assertion is actually known to the Indemnified Party (which estimate shall not be conclusive of the final amount of such claim) (the notice, a “Third Person Claim Notice” and, collectively with a Direct Claim Notice, a “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the right of a person to be indemnified hereunder in respect of Claims made by a third party shall not be adversely affected by a failure to give such notice unless, and then only to the extent that, Parent is actually and materially prejudiced thereby. Except as otherwise provided in this Section 11.3(b), Parent shall then have the right, upon written notice to the Indemnified party Party (a “Defense Notice”) within 30 days after receipt of the Third Person Claim Notice, to defend against, negotiate, settle, or otherwise deal with such Third Person Claim subject to the terms hereof, and to have the Indemnified Party represented by counsel, reasonably satisfactory to the Indemnified Party. The Indemnified Party may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless, in the reasonable opinion of such Indemnified Party’s counsel, separate representation is hereby authorized prior necessary to avoid a conflict of interest between the Indemnified Party and during Parent that cannot be waived, in which case Parent shall be liable for the Notice Period reasonable fees and expenses of a single counsel to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its intereststhe Indemnified Party. In the event that Parent shall fail to give the Indemnifying Party notifies Defense Notice within such 15-day period, (i) the Indemnified Party within shall be entitled to have the Notice Period that control over said defense and settlement of the subject Claim, (ii) Parent will cooperate with and make available to the Indemnified Party such assistance and materials as it does not dispute such liability may reasonably request, and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party (iii) Parent shall have the right at its expense to defend participate in the defense assisted by counsel of its own choosing. In such claim or demand by appropriate proceedingsan event, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming will not settle the subject to liability. If Claim without the Indemnified Party desires to participate inprior written consent of Parent, but which consent will not controlbe unreasonably withheld, any such defense conditioned, or settlement, it may do so at its own cost and expense. If delayed. (ii) In the Indemnifying Party disputes its liability event that Parent delivers a Defense Notice with respect to such claimThird Person Claim within 15 days after receipt thereof and thereby elects to conduct the defense of the subject Claim, or elects not (A) Parent shall be entitled to have control over said defense and employ and engage attorneys of its own choice, but who are reasonably acceptable to the Indemnified Party, to handle and defend against the same and, subject to the provisions set forth below, settlement of the subject Claim, (B) the Indemnified Party will cooperate with and make available to Parent such claimassistance and materials as it may reasonably request, whether by not giving timely notice as provided above or otherwise, and (C) the Indemnified Party shall have the right but rights at its expense to participate in the defense assisted by counsel of its own choosing. In such an event, Parent will not settle the obligation to defend against such claim, and subject Claim without the amount prior written consent of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then which consent will not be unreasonably withheld, conditioned, or delayed unless (A) there is no finding or admission of any violation of law or any violation of the rights of any person; (B) the sole relief provided is monetary damages that portion thereof as are paid in full by Parent; and (C) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Person Claims effected without its consent, in which such cases the consent of the Indemnified Party shall not be required. (iii) Parent shall not be entitled to assume or continue control of the defense of any Third Person Claim if the Third Person Claim (A) relates to or arises in connection with any criminal proceeding or alleged violation of Gaming Laws, (B) seeks an injunction or other equitable relief against any Indemnified Party, or (C) that imposes liability on the part of the Indemnified Party for which the Indemnified Party is unsuccessfulnot entitled to indemnification hereunder. The Parties shall cooperate fully with each other in connection with the defense, negotiation or settlement of any Third Person Claim. (iv) The rights of Parent under this Section 11.3(b) with respect to Claims for indemnification made solely under Section 11.1(a)(i) shall be conclusively deemed subject to be a liability the Claims procedure of the Indemnifying Party hereunder (subjectRWI Insurers, if it has timely disputed liabilityand to counsel and settlement decisions of the RWI Insurers. In the event of any conflict between the Claim requirements and procedures under the RWI Binder and this Section 11.3(b), to a determination that the disputed liability is covered by this Article X)Claim requirements and procedures under the RWI Binder shall prevail.

Third Person Claims. In (a) Notwithstanding anything to the event that any claim contrary contained in Section 8.1, in order for which a party providing to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly, but in any event within ten (10) Business Days, after receipt by such Indemnified Party of written notice of the third Person claim, which such notification must include a copy of the written notice of the third Person claim that was received by the Indemnified Party (the “Indemnifying PartyThird Person Claim Notice”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person). Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor, promptly, but in any event within five (5) Business Days, after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnifying Party Indemnitor with a copy of the complaint promptly, but in any event within five (5) Business Days, after receipt thereof and shall deliver to the Indemnitor promptly, but in any event within seven (7) Business Days, after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Subject to Section 8.1, specifying the nature failure of any Indemnified Party to promptly provide a Third Person Claim Notice as required by this Section 8.4 shall not affect such claim and the amount or the estimated amount thereof Indemnified Party’s rights under this Article VIII except to the extent then feasible (which estimate shall not be conclusive such failure is actually and materially prejudicial to the rights and obligations of the final amount of such claimIndemnitor. (b) (In the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt event of the Claim Notice (the “Notice Period”) to notify initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes by a third Person, the Indemnitor shall have the right after the receipt of a Third Person Claim Notice, at its liability option and at its own expense, to be represented by counsel selected by the Indemnitor, and reasonably satisfactory to the Indemnified Party hereunder Party, and to control, defend against, negotiate, settle or otherwise deal with respect any proceeding, claim, or demand which relates to such claim; and (ii) if it does not dispute such liabilityany loss, whether liability or not it desires, at its sole cost and expense, to defend the Indemnified Party damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior to Party may participate in any such proceeding with counsel of its choice and during the Notice Period to file any motionat its expense; provided, answer or other pleadingfurther, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies Indemnitor shall not be entitled to assume the defense of such third Person proceeding, claim or demand if (x) counsel to the Indemnified Party within shall have in good faith concluded that there is or is reasonably likely to be an actual conflict of interest between the Notice Period Indemnitor and any Indemnified Party in such proceeding, claim or demand that it does not dispute such liability and desires would reasonably be expected to adversely affect the Indemnitor’s ability to defend the interests of the such Indemnified Party in such third Person proceeding, claim or demand or (y) the Third Party Claim Notice seeks an injunction or other equitable relief against the Indemnified Party or relates to or arises in connection with any criminal or quasi-criminal action against the Indemnified Party. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such proceeding, claim or demand. Prior to the time the Indemnified Party is notified by the Indemnitor as to whether the Indemnitor will assume the defense of such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Indemnified Party shall have take all actions reasonably necessary to timely preserve the right collective rights of the parties with respect to such proceeding, claim or demand, including responding timely to legal process. To the extent the Indemnitor elects not to defend such proceeding, claim or demand (or fails to confirm its election) within thirty (30) days after the giving by appropriate proceedingsthe Indemnified Party to the Indemnitor of a Third Person Claim Notice, or is not permitted to assume the defense of such third Person claim under the circumstances provided above, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of, or otherwise deal with, such proceeding, claim or demand. Regardless of which proceedings party assumes the defense of such proceeding, claim or demand, the parties agree to cooperate with one another in connection therewith. Such cooperation shall include providing records and information that are relevant to such proceeding, claim or demand, and making each parties’ employees and officers available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnitor assumes the defense of such proceeding, claim or demand, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such proceeding, claim or demand without the Indemnitor’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnitor shall not consent to a settlement of, or the entry of any judgment arising from, any such proceeding, claim or demand without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or judgment (a) relates solely to monetary damages for which the Indemnitor shall be promptly settled or prosecuted to a final conclusion, in such a manner responsible and (b) includes as to avoid any risk an unconditional term thereof the release of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its from all liability with respect to such claimproceeding, claim or demand, in which event no such consent shall be required. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or elects not a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to defend against such claim, whether each separate matter alleged to be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within thirty (30) days after the date of such notice. (c) The party that has assumed the control or defense of any such proceeding, claim or demand made by a third Person against the other party shall (a) provide the other party with the right to participate in any meetings or negotiations with any Governmental Authority or other third Person and reasonable advance notice of any such meetings or negotiations, (b) provide the other party with the right to review in advance and provide comments on any draft or final documents proposed to be submitted to any Governmental Authority or other third Person, and (c) keep the other party reasonably informed with respect to such proceeding, demand or claim, including providing copies of all documents provided to, or if received from, any Governmental Authority or any other third Person in connection with such proceeding, demand or claim. Buyer Group Members, on the same be contested one hand, and Seller Group Members, on the other hand, covenant and agree to maintain the confidence of all such drafts and comments provided by the Indemnifying Party or by other. (d) To the Indemnified Partyextent of any inconsistency between this Section 8.4 and Section 5.2(g) with respect to Taxes, then that portion thereof as to which such defense is unsuccessful, the provisions of Section 5.2(g) shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)control.

Third Person Claims. In the event that any (a) If a claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personPerson is made against an Indemnified Party (including a claim with respect to Taxes), the and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VIII, such Indemnified Party shall promptly notify (i) Parent, in the Indemnifying Party case of indemnification sought by any Equityholder Indemnified Party, or (ii) the Representatives and the Escrow Agent, in the case of indemnification sought by any Parent Indemnified Party, in writing of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible claims (which estimate shall not be conclusive of the final amount of such claim) (the a “Third Party Claim Notice”). The Indemnifying Third Party Claim Notice shall have thirty describe (30if and to the extent then known) days from its receipt in reasonable detail the facts giving rise to the claim for indemnification hereunder that is the subject of the Third Party Claim Notice, the amount and the method of computation of the amount of such claim, a reference to the provision of this Agreement upon which such claim is based and all material documentation relevant to the claim described in the Third Party Claim Notice (to the “extent not previously provided under this Section 8.6). A Third Party Claim Notice Period”shall be given promptly following the claimant’s determination that facts or events are reasonably expected to give rise to a claim for indemnification hereunder; provided, that, the failure to give such written notice shall not relieve any Indemnitor of its obligations hereunder, except to the extent such failure results in actual and material prejudice to the parties required to provide the indemnity pursuant to this Agreement. The failure to submit all relevant documentation with a Third Party Claim Notice or otherwise abide by the procedural covenants set forth in this Section 8.6 shall not result in the purported Third Party Claim Notice not being a proper Third Party Claim Notice hereunder, except to the extent it demonstrates actual and material prejudice by such failure. (b) The Indemnitor (acting through Parent, in the case of indemnification sought by any Equityholder Indemnified Party, and acting through the Representatives, in the case of indemnification sought by a Parent Indemnified Party) shall have 30 days after receipt of such Third Party Claim Notice to undertake, conduct and control, through counsel of its own choosing (who shall be subject to the approval of the Indemnified Party, which approval shall not be unreasonably withheld, delayed or conditioned) and at its own expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith. In such event, an Indemnified Party shall be entitled to participate with its own counsel at its own expense, provided that, if in the reasonable opinion of counsel for such Indemnified Party, there is a reasonable likelihood of a conflict of interest between the Indemnitor and the Indemnified Party, then the reasonable cost of one counsel for the Indemnified Party shall be borne by the Indemnitor. If the Indemnitor does not notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party in writing within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk 30 days after receipt of the Indemnified Party becoming subject Party’s written notice of a third Person claim that it elects to liability. If undertake the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwisethereof, the Indemnified Party shall have the right but not to undertake the obligation defense or prosecution of the claim through counsel of its own choice, and the reasonable fees and expenses incurred in connection with such defense or prosecution shall be considered Losses hereunder with respect to defend against the subject matter of such claim, indemnifiable to the extent provided in Section 8.1 and Section 8.2. In the amount event the Indemnitor is required by this Agreement to pay the costs of any counsel of an Indemnified Party then the selection of such claimcounsel shall be subject to the approval of the Indemnitor which approval shall not be unreasonably withheld, delayed or if conditioned. (c) The Indemnitor shall not, except with the same be contested by the Indemnifying Party or by consent of the Indemnified Party, then enter into any settlement or compromise any claim by a third Person that portion (i) does not include as a term thereof as the giving by the Person or Persons asserting such claim to all Indemnified Parties of a complete and unconditional release from all Liability (subject to the application of the Deductible) with respect to such claim or consent to entry of any judgment, (ii) does not contain a finding of responsibility or Liability on the part of the Indemnified Party (other than the payment of cash for which the Indemnitor pays in full simultaneously with the effectiveness of the settlement and upon payment of which the Indemnitor waives any right to seek reimbursement from the Indemnified Party (subject to the application of the Deductible)) or (iii) involves any non-monetary relief or remedy, including any restrictions on the Indemnified Party’s ability to operate or compete. Any consent required by this Section 8.6(c) shall not be unreasonably delayed, withheld or conditioned. If the Indemnified Party is controlling the defense of any claim to which such defense it is unsuccessfulentitled to indemnification pursuant to this Article VIII, it shall be conclusively deemed to be not enter into any settlement or compromise any claim by a liability third Person without the written consent of the Indemnifying Party hereunder Indemnitor, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding anything else to the contrary in this Agreement, the Representatives shall not settle, compromise or conclude any claim with respect to Taxes without the prior written consent of Parent. (subjectd) Each party shall have reasonable access during normal business hours to the employees, if it has timely disputed liabilitybooks and records of the other party for purposes of investigating the merits of any claim which is the subject of investigation; provided, that, the parties agree that such access will give due regard to a determination that minimizing interference with the disputed liability is covered by this Article X)operations, activities and employees of the other party. Each party shall use its commercially reasonable efforts to preserve the confidentiality and/or privileged status of all confidential and/or privileged information provided pursuant to such request.

Third Person Claims. In the event (i) If any Third Person notifies any Indemnified Person with respect to any matter (a “Third Person Claim”) that any may give rise to a claim for which a party providing indemnification (the “against an Indemnifying Party”) would be liable to a party Party under Section 8.1 or any of its officersSection 8.2, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, then the Indemnified Party Person shall promptly notify give written notification to the Indemnifying Party of such claim, specifying this Agreement. Such notification shall be given within 30 days after receipt by the nature Indemnified Person of notice of such claim Third Person Claim, and shall describe in reasonable detail (to the extent known by the Indemnified Person) the facts constituting the basis for such Third Person Claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) claimed Damages (the “Claim Notice”if available). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that no delay or failure on the part of the Indemnified party is hereby authorized prior Person in so notifying the Indemnifying Party shall relieve the Indemnifying Party of any liability or obligation hereunder except to and during the Notice Period extent such delay or failure results in insufficient time being available to file any motionpermit the Indemnifying Party to effectively defend against the Third Person Claim or otherwise prejudices the Indemnifying Party’s ability to defend against the Third Person Claim. (ii) The Indemnifying Party may, answer or other pleadingupon written notice to the Indemnified Person, submission or document which it shall deem necessary or appropriate assume control of the defense of such Third Person Claim with counsel reasonably satisfactory to protect its interests. In the event Indemnified Person; provided that (a) the Indemnifying Party notifies the Indemnified Person in writing within 30 days after the Indemnified Person has given notice of the Third Person Claim that the Indemnifying Party within will indemnify the Notice Period Indemnified Person from and against the Damages the Indemnified Person may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Person Claim (subject to the provisions of this Article VIII); (b) the ad damnum, if any, is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VIII; (c) the Indemnifying Party provides the Indemnified Person with evidence acceptable to the Indemnified Person that it does not dispute such liability and desires the Indemnifying Party will have the financial resources to defend against the Third Person Claim and fulfill its indemnification obligations hereunder; (d) the Third Person Claim does not involve criminal liability and seeks only money damages and not equitable relief against the Indemnified Person; (e) settlement of, or an adverse judgment with respect to, the Third Person Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person, and (f) the Indemnifying Party conducts the defense of the Third Person Claim actively and diligently. (iii) If the Indemnifying Party does not, or is not permitted under the terms of this Agreement to, so assume control of the defense of a Third Person Claim, the Indemnified Person shall control such claim defense. (iv) The Non-controlling Party may participate in such defense at its own expense. The Controlling Party shall keep the Non-controlling Party advised of the status and defense of such Third Person Claim and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Third Person Claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, theninvoice, except as hereinafter providedbilling or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third Person Claim. The reasonable fees and expenses of counsel to the Indemnified Person with respect to a Third Person Claim shall be considered Damages for purposes of this Agreement if: (x) the Indemnified Person controls the defense of such Third Person Claim under the terms of this Section 8.3; or (y) the Indemnifying Party assumes control of such defense and the Indemnified Person reasonably concludes that the Indemnifying Party and the Indemnified Person have conflicting interests or different defenses available with respect to such Third Person Claim. (v) The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Person Claim without the prior written consent of the Indemnified Person, which shall not be unreasonably withheld or delayed; provided that the consent of the Indemnified Person shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable under such settlement or judgment and such settlement or judgment includes a complete release of the Indemnified Person from further liability and has no other adverse effect on the Indemnified Person. The Indemnified Person shall send the Indemnifying Party at least ten days prior notice of any settlement of the Third Person Claim that it proposes to enter into, and if the Indemnifying Party has not yet assumed the defense of the Third Person Claim that is capable of being assumed under the terms of Section 8.3(a)(ii), the Indemnifying Party shall have may admit in writing its obligation to provide indemnity as described in Section 8.3(a)(ii)(a), assume the right to defend such claim or demand by appropriate proceedingsdefense, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and reject the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or proposed settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect has assumed the defense of the Third Person Claim or the initial 30-day period in which the Indemnifying Party may elect to such claim, or elects assume the defense has not to defend against such claim, whether by not giving timely notice as provided above or otherwiseyet run, the Indemnified Party Person shall have not agree to any settlement of, or the right but not the obligation to defend against such claim, and the amount entry of any judgment arising from, any such claim, or if Third Person Claim without the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability prior written consent of the Indemnifying Party hereunder (subjectParty, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)which shall not be unreasonably withheld or delayed.

Third Person Claims. In (a) Notwithstanding anything to the event that any claim contrary contained in Section 9.3, in order for which a party providing indemnification (the “Indemnifying Party”) would to be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to any indemnification hereunder (provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the “Indemnified Party”, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within ten (10) is asserted against or sought to be collected days after receipt by a such Indemnified Party of written notice of the third personPerson claim. Thereafter, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof deliver to the extent then feasible Indemnitor, within five (which estimate shall not be conclusive 5) Business Days after the Indemnified Party’s receipt thereof, copies of the final amount of such claimall notices and documents (including court papers) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify received by the Indemnified Party (i) whether or not it disputes its liability relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party hereunder must notify the Indemnitor with respect a copy of the complaint within five (5) Business Days after receipt thereof and shall deliver to the Indemnitor within seven (7) Business Days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim; . (a) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to and during cooperate fully with each other in connection with the Notice Period to file defense, negotiation or settlement of any motionsuch legal proceeding, answer claim or other pleading, submission or document which it shall deem necessary or appropriate to protect its interestsdemand. In To the event that extent the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and the Indemnified Party becoming subject to liability. If defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party desires may retain counsel, reasonably acceptable to participate inthe Indemnitor, but not controlat the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such defense proceeding which settlement obligates the other party to pay money, to perform obligations or settlementto admit liability without the consent of the other party, it may do so such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within thirty (30) days after the date of such notice. To the extent of any such claiminconsistency between this Section 9.4 and Section 6.1(c), or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, provisions of Section 6.1(c) shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)control.

Third Person Claims. In the event that (a) If any SXE Indemnitee or TexStar Indemnitee (any such Person, an “Indemnified Party”) has received notice or otherwise has knowledge of any claim for which by any Person who is not a party providing Party or the commencement of any Proceeding by such Person who the Indemnified Party believes in good faith has an indemnifiable claim under this Agreement (a “Third Person Claim”), the Indemnified Party shall deliver a Claim Notice with respect thereto to the Party obligated to provide indemnification pursuant to Section 7.1 or Section 7.2 (the “Indemnifying Party”) would be liable ); provided, however, that the failure or delay to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, the Indemnified Party shall promptly so notify the Indemnifying Party of shall not relieve the Indemnifying Party from liability for such claim, specifying the nature of such claim and the amount or the estimated amount thereof Third Person Claim except to the extent then feasible (which estimate shall not be conclusive that such failure or delay results in the loss or forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the final amount Indemnifying Party with respect to such Third Person Claim or increased indemnification expenses incurred as a direct result of such claim) (failure or delay to so notify. The Claim Notice shall state the “Claim Notice”)nature and the basis of such Third Person Claim. The Indemnifying Party shall have thirty the right to defend and settle any such Third Person Claim, at its own expense and by its own counsel (30reasonably acceptable to the Indemnified Party) days from if the Indemnifying Party provides written notice to the Indemnified Party (within five Business Days of its receipt of the Claim Notice Notice) declaring its intention to defend or settle such Third Person Claim. (b) If the “Notice Period”) to notify Indemnifying Party notifies the Indemnified Party (i) whether of its intention to undertake the defense or not it disputes its liability settlement of such Third Person Claim pursuant to Section 7.4(a), the Indemnified Party hereunder shall cooperate with respect to such claim; the Indemnifying Party and (ii) if it does not dispute such liability, whether or not it desiresits counsel, at its the Indemnifying Party’s sole cost and expense, to defend in all commercially reasonable respects in the defense thereof and in any settlement thereof. Such cooperation shall include furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. After the Indemnifying Party has notified the Indemnified Party against of its intention to undertake the defense or settlement of such claimThird Person Claim pursuant to Section 7.4(a), the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such Third Person Claim; provided, however, that the Indemnified party is hereby authorized prior Party shall be entitled, at its expense, to participate in the defense of such Third Person Claim and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In negotiations of the event that the settlement thereof. (c) The Indemnifying Party notifies shall not settle any Third Person Claim without the consent of the Indemnified Party within unless the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, the Indemnified Party and further involves no injunction or equitable relief upon the Indemnified Party and no limitation on the future operation of the business, assets or property of the Indemnified Party and its Affiliates. (d) If, upon receiving a Claim Notice Period that it does not dispute such liability and desires with respect to defend against such claim or demand, then, except as hereinafter provideda Third Person Claim, the Indemnifying Party shall have the right does not timely undertake to defend such claim Third Person Claim, or demand by appropriate proceedings, which proceedings shall be promptly settled fails to pursue such defense diligently or prosecuted is otherwise not entitled to a final conclusion, in assume the defense of such a manner as to avoid any risk of Third Person Claim or the Indemnified Party becoming subject is otherwise entitled to liability. If the Indemnified Party desires to participate in, but not control, any assume such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwisedefense, the Indemnified Party shall have may undertake such defense through counsel of its choice, at the right but not cost and expense of the obligation to defend against such claimIndemnifying Party, and the amount of any Indemnified Party may settle such claimThird Person Claim, or if the same be contested by in its discretion, and the Indemnifying Party or shall reimburse the Indemnified Party for the amount paid in such settlement and any other Losses incurred by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)in connection therewith.

Third Person Claims. In (a) Promptly after the event that assertion by any third party of any claim against any Indemnified Party (a "Third Party Claim") that, in the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which a party providing indemnification (the “Indemnifying Party”) such Indemnified Party would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought pursuant to be collected by a third personthis Agreement, the such Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof deliver to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Indemnitor a Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that no delay on the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk part of the Indemnified Party becoming subject in notifying the Indemnitor shall relieve the Indemnitor of any liability or obligations hereunder, except to liability. If the Indemnified Party desires to participate inextent that the Indemnitor has been materially prejudiced thereby, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect then only to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the extent. The Indemnified Party shall have the right but in its sole discretion to conduct the defense of any such Third Party Claim; provided, that the Indemnitor shall not be liable to indemnify any Indemnified Party for any settlement of any such Third Party Claim effected without the obligation prior written consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Indemnitor, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party shall be entitled to defend against such claim, and indemnification for the amount of any such claim, or if the same be contested by Loss relating thereto. The Indemnified Party shall consult with the Indemnifying Party in a reasonable manner at reasonable times regarding the status of any Third Party Claim, including regarding strategy, bona fide settlement offers or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability mediations and material results of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)discovery and investigation.

Third Person Claims. In 8.3.1 Promptly after a DoveBid Indemnitee or the event that Company has received notice of, or has knowledge of, any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Person Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify DoveBid Indemnitee or the Indemnifying Party Company shall, as a condition precedent to a claim with respect thereto being made against Shareholders, give Shareholders written notice of such claim, specifying Third Person Claim describing in reasonable detail the nature of such claim and Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount or of Damages attributable to the estimated amount thereof Third Person Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (and the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of basis for the Claim Notice (DoveBid Indemnitee's or the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimCompany's request for indemnification under this Agreement; provided, however, that the Indemnified party is hereby authorized prior failure of the DoveBid Indemnitee or the Company to and during give timely notice hereunder shall relieve the Notice Period Shareholders of their indemnification obligations under this Agreement only to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event extent that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires failure materially prejudices Shareholders' ability to defend against such claim unless notice is not received by the third anniversary of the Closing Date or demandin the case of a claim with respect to a breach of Section 2.7 by the sixth anniversary of the Closing Date. 8.3.2 DoveBid shall either directly or through the Company defend any Third Person Claim, thenand the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, except other professionals' and experts' fees and court or arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder. To the extent such costs and expenses referred to in the preceding sentence are incurred in connection with the defense of the Outstanding Litigation, such costs and expenses shall only be included as hereinafter providedDamages to the extent they exceed the reserve of NLG 45,000 in the Financial Statements. If DoveBid fails to defend such Third Person Claim, the Indemnifying Party Shareholders shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of assume the Indemnified Party becoming subject to liabilitydefense thereof. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party Shareholders shall have the right but to receive copies of all pleadings, notices and communications with respect to the Third Person Claim to the extent that receipt of such documents by Shareholders does not affect any privilege relating to the obligation to defend against such claimDoveBid Indemnitee, and may participate in settlement negotiations with respect to the Third Person Claim. No DoveBid Indemnitee nor the Company shall enter into any settlement of a Third Person Claim without the prior written consent of Shareholders (which consent shall not be unreasonably withheld), provided, that if Shareholders shall have consented in writing to any such settlement, then Shareholders shall have no right to object to any Claim by any DoveBid Indemnitee for indemnity under Article VIII for the amount of any such claimsettlement; and Shareholders will remain responsible to indemnify the DoveBid Indemnitee for all Damages that may be incurred arising out of, resulting from or if the same be contested caused by the Indemnifying Third-Party or by Claim to the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this fullest extent provided in Article X)VIII.

Third Person Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving any legal proceeding, claim or demand (a "Third Party Claim") made by any third Person against the Indemnified Party in respect of which indemnity may be sought from the Indemnitor under this Article XI, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the Third Party Claim promptly after receipt by such Indemnified Party of written notice of the Third Party Claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, promptly after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the Third Party Claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Party Claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint promptly after receipt thereof and shall deliver to the Indemnitor promptly after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. (b) In the event that any legal proceeding shall be threatened or instituted or any claim for or demand shall be asserted by any Person in respect of which a payment may be sought by one party providing indemnification (hereto from the “Indemnifying Party”) would be liable to a other party or any under the provisions of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personthis Article XI, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of any such claimclaim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim shall contain a reference to the provision of this Agreement or the Accounts Receivable Purchase Agreement upon which such claim is based, specifying the nature of such facts giving rise to an alleged basis for the claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (liability asserted against the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt Indemnitor by reason of the Claim Notice claim. (the “Notice Period”c) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party The Indemnitor shall have the right to defend conduct and control (so long as it does so diligently), at its expense and with counsel of its choosing that is reasonably satisfactory to such claim Indemnified Party, the defense, compromise or demand settlement of any such Third Party Claim against such Indemnified Party as to which indemnification will be sought by appropriate any Indemnified Party from any Indemnitor hereunder, and in any such case the Indemnified Party shall cooperate in connection therewith and shall furnish and make available to the Indemnitor all witnesses, records, information and testimony and attend such conferences, discovery proceedings, which proceedings shall hearings, trials and appeals as may be promptly settled or prosecuted to a final conclusionreasonably requested by the Indemnitor in connection therewith; provided, that the Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any such a manner Third Party Claim as to avoid any risk which the Indemnitor has so elected to conduct and control the defense thereof. Except for the settlement of a Third Party Claim which involves the payment of money only (without the admission of liability), with respect to which the Indemnitor has agreed to indemnify the Indemnified Party, no Third Party Claim may be settled by the Indemnitor without the written consent of the Indemnified Party becoming subject to liabilityParty, which consent shall not be unreasonably withheld or delayed. If Notwithstanding the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwiseforegoing, the Indemnified Party shall have the right but to pay, settle or compromise any such Third Party Claim that Indemnitor has agreed to defend, provided that in such event the Indemnified Party shall waive any right to indemnity therefor hereunder. In the event Indemnitor has determined not to conduct and control the obligation defense of such Third Party Claim, the Indemnified Party may defend, compromise or settle (or take or fail to defend take any action with respect to) such Third Party Claim without waiver of its rights against such claimIndemnitor hereunder. (d) After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the amount time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall, subject to Section 11.5(d), forward to the Indemnitor notice of any sums due and owing by it with respect to such claim, or if matter and the same be contested by Indemnitor shall pay all of the Indemnifying Party or by sums so owning to the Indemnified PartyParty by wire transfer, then that portion thereof as certified or bank cashier's check within thirty (30) days after the date of such notice. (e) To the extent of any inconsistency between this Section 11.4 and Section 8.2(c) (relating to which Tax contests), the provisions of Section 8.2(c) shall control with respect to Tax contests. (f) The failure of an Indemnified Party to give any notice required in Section 11.3 or this Section 11.4 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)failure.

Third Person Claims. In (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the event that Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within 10 days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five (5) business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) If any legal proceeding shall be threatened or instituted or any claim for or demand shall be asserted by any Person in respect of which a payment may be sought by one party providing indemnification (hereto from the “Indemnifying Party”) would be liable to a other party or any under the provisions of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personthis Article XI, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of any such claimclaim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, specifying warranties or covenants contained in this Agreement shall refer to the nature provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail, the facts giving rise to an alleged basis for the claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (liability asserted against the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt Indemnitor by reason of the Claim Notice (claim. In the “Notice Period”) to notify event of the initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense. Each of the parties hereto agrees to cooperate fully with the other party in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand and to make available to the other party all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is hereby authorized prior to and during reasonably required by the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interestsparty. In To the event that extent the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, thenand the Indemnified Party defends against or otherwise deals with any such proceeding, except as hereinafter claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding; provided, however, that the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings Indemnitor shall be promptly settled obligated pursuant to this Section 11.5 to pay for only one firm of counsel for all Indemnified Parties. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or prosecuted to a final conclusionadmit liability without the consent of the other party, in such a manner as consent not to avoid any risk be unreasonably withheld. Furthermore, the Indemnitor may not, without the prior written consent of the Indemnified Party becoming (such consent not to be unreasonably withheld), settle any such proceeding or compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any Indemnified Party is or would reasonably be expected to be a party and indemnity was or would reasonably be expected to be sought hereunder by such Indemnified Party, unless such settlement, compromise or consent (i) includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such action, suit or proceedings and (ii) does not include a statement as to liabilityor an admission of fault, culpability or failure to act by or on behalf of any Indemnified Party. If the Indemnified Party desires shall refuse to participate inconsent to the settlement of any third Person claim, but not control, any such defense so long as only money damages are involved and there is no admission of liability or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such claimthird Person claim shall not exceed the amount for which the third Person claim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with the proposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or elects not a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to defend against such claim, whether each separate matter alleged to be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within 30 days after the date of such notice. (c) To the extent of any such claiminconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as provisions of Section 8.1(c) shall control with respect to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Tax contests.

Third Person Claims. In 8.6.1. If the event that Claiming Party seeks indemnification under this Article VIII with respect to any claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party pending or any of its officers, directors, partners, employees, agents threatened action at law or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected suit in equity by a third personPerson against such Claiming Party (each such action being a “Third Person Claim”), the Indemnified Party shall promptly notify the Indemnifying Party of such claimwill be entitled, specifying if (a) the nature of such claim Third Person Claim involves solely monetary damages and the amount or Indemnifying Party expressly agrees in writing with the estimated amount thereof Claiming Party that, as between the two, the Indemnifying Party is solely responsible to satisfy and discharge the Third Person Claim and (b) the Indemnifying Party so elects by written notice delivered to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”). The Indemnifying Claiming Party shall have no later than thirty (30) days from its receipt of after receiving the Claim Notice (Notice, to conduct and control the “Notice Period”) to notify the Indemnified Party (i) whether or not defense of such Third Person Claim with counsel chosen by it disputes its liability that is reasonably acceptable to the Indemnified Claiming Party, and in any such case the Claiming Party hereunder with respect to shall cooperate in connection therewith and shall furnish such claimrecords, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith; provided, that the Claiming Party may participate in, through counsel chosen by it and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and own expense, the defense of any such Third Person Claim as to defend which the Indemnified Indemnifying Party against such claimhas elected to conduct and control the defense thereof; providedprovided further, however, that the Indemnified party is hereby authorized prior Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Claiming Party, if and to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event extent that (w) the Indemnifying Party notifies has not employed counsel reasonably satisfactory to the Indemnified Claiming Party to assume the defense of such Third Person Claim within a reasonable time after receiving notice of the Notice Period that it does commencement of the action; (x) the employment of counsel and the amount reimbursable therefor by the Claiming Party has been authorized in writing by the Indemnifying Party; (y) a defense available to the Claiming Party cannot dispute be asserted by the Indemnifying Party; or (z) representation of the Indemnifying Party and the Claiming Party by the same counsel would, in the reasonable opinion of such liability and desires to defend against such claim or demandcounsel, then, except as hereinafter providedcreate a conflict of interest. Until the Indemnifying Party assumes the defense of a Third Person Claim, the Indemnifying Claiming Party shall have the right to defend such claim or demand by appropriate proceedingsThird Person Claim, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If right of the Indemnifying Party disputes its to assume the defense of such Third Person Claim subject to this Section 8.6.1. 8.6.2. Notwithstanding anything to the contrary herein, neither the Indemnifying Party nor the Claiming Party shall admit any liability with respect to, or settle, compromise, discharge or consent to the entry of judgment with respect to, any Third Person Claim without the prior written consent of the Claiming Party or the Indemnifying Party, respectively (which consent shall not be unreasonably withheld, conditioned or delayed); provided, if the Indemnifying Party assumes the defense of any Third Person Claim, the Indemnifying Party may enter into any settlement or compromise or consent to the entry of any judgment with respect to such claimThird Person Claim if such settlement, compromise or judgment (i) does not involve a finding or admission of wrongdoing by the Claiming Party, (ii) includes an unconditional written release by the applicable claimant or plaintiff of the Claiming Party from all liability in respect of such Third Person Claim, (iii) imposes no equitable remedies, or elects not otherwise purports to defend against such claim, whether by not giving timely notice as provided above or otherwiselimit, the Indemnified Claiming Party shall have and (iv) does not subject the right but Claiming Party to any Losses not the obligation to defend against such claim, and the amount of any such claim, or if the same be contested fully indemnified by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)hereunder.

Third Person Claims. In the event that 8.4.1 Promptly after any party hereto an Indemnified Person has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Person Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify Person shall, as a condition precedent to a claim with respect thereto being made against an Indemnifying Person, give the Indemnifying Party Person written notice of such claim, specifying Third Person Claim describing in reasonable detail the nature of such claim and Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount or of damages attributable to the estimated amount thereof Third Person Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (and the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify basis for the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimPerson's request for indemnification under this Agreement; provided, however, that the failure of the Indemnified party is hereby authorized prior Person to and during the Notice Period to file any motion, answer or other pleading, submission or document which it give timely notice hereunder shall deem necessary or appropriate to protect its interests. In the event that relieve the Indemnifying Party notifies Person of its indemnification obligations under this Agreement to the Indemnified Party within extent, but only to the Notice Period that it does not dispute extent that, such liability and desires failure materially prejudices the Indemnifying Person's ability to defend against such claim or demand, then, except as hereinafter providedclaim. Within fifteen (15) days after receipt of such notice (the "Election Period"), the Indemnifying Party Person shall notify the Indemnified Person whether the Indemnifying Person disputes its potential liability to the Indemnified Person under this Article VIII with respect to that Third Person Claim. 8.4.2 DoveBid shall defend any Third Person Claim, and the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity pursuant to a Claim made by any DoveBid Indemnitee hereunder. The Representative shall have the right to defend such claim or demand by appropriate proceedingsreceive copies of all pleadings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost notices and expense. If the Indemnifying Party disputes its liability communications with respect to the Third Person Claim to the extent that receipt of such claimdocuments by the Representative does not affect any attorney-client or work-product privilege relating to the DoveBid Indemnitee, or elects and may participate in settlement negotiations with respect to the Third Person Claim. No DoveBid Indemnitee shall enter into any settlement of a Third Person Claim without the prior written consent of the Representative (which consent shall not to defend against such claimbe unreasonably withheld), whether by not giving timely notice as provided above or otherwiseprovided, that if the Indemnified Party Representative shall have consented in writing to any such settlement, then the right but not the obligation Representative shall have no power or authority to defend against such claim, and object to any Claim by any DoveBid Indemnitee for indemnity under Article VIII for the amount of any such claimsettlement; and the Members will remain responsible to indemnify the DoveBid Indemnitee for all Damages they may incur arising out of, resulting from or if the same be contested caused by the Indemnifying Third-Party or by Claim to the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this fullest extent provided in Article X)VIII.

Third Person Claims. In the event that (a) If any Southcross Indemnitee or TexStar Indemnitee (any such Person, an “Indemnified Party”) has received notice or otherwise has knowledge of any claim for which by any Person who is not a party providing Party or the commencement of any Proceeding by such Person who the Indemnified Party believes in good faith has an indemnifiable claim under this Agreement (a “Third Person Claim”), the Indemnified Party shall deliver a Claim Notice with respect thereto to the Party obligated to provide indemnification pursuant to Section 9.1 or Section 9.2 (the “Indemnifying Party”) would be liable ); provided, however, that the failure or delay to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, the Indemnified Party shall promptly so notify the Indemnifying Party of shall not relieve the Indemnifying Party from liability for such claim, specifying the nature of such claim and the amount or the estimated amount thereof Third Person Claim except to the extent then feasible (which estimate shall not be conclusive that such failure or delay results in the loss or forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the final amount Indemnifying Party with respect to such Third Person Claim or increased indemnification expenses incurred as a direct result of such claim) (failure or delay to so notify. The Claim Notice shall state the “Claim Notice”)nature and the basis of such Third Person Claim. The Indemnifying Party shall have thirty the right to defend and settle any such Third Person Claim, at its own expense and by its own counsel (30reasonably acceptable to the Indemnified Party) days from if the Indemnifying Party provides written notice to the Indemnified Party (within five Business Days of its receipt of the Claim Notice Notice) declaring its intention to defend or settle such Third Person Claim. (b) If the “Notice Period”) to notify Indemnifying Party notifies the Indemnified Party (i) whether of its intention to undertake the defense or not it disputes its liability settlement of such Third Person Claim pursuant to Section 9.4(a), the Indemnified Party hereunder shall cooperate with respect to such claim; the Indemnifying Party and (ii) if it does not dispute such liability, whether or not it desiresits counsel, at its the Indemnifying Party’s sole cost and expense, to defend in all commercially reasonable respects in the defense thereof and in any settlement thereof. Such cooperation shall include furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. After the Indemnifying Party has notified the Indemnified Party against of its intention to undertake the defense or settlement of such claimThird Person Claim pursuant to Section 9.4(a), the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such Third Person Claim; provided, however, that the Indemnified party is hereby authorized prior Party shall be entitled, at its expense, to participate in the defense of such Third Person Claim and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In negotiations of the event that the settlement thereof. (c) The Indemnifying Party notifies shall not settle any Third Person Claim without the consent of the Indemnified Party within unless the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, the Indemnified Party and further involves no injunction or equitable relief upon the Indemnified Party and no limitation on the future operation of the business, assets or property of the Indemnified Party and its Affiliates. (d) If, upon receiving a Claim Notice Period that it does not dispute such liability and desires with respect to defend against such claim or demand, then, except as hereinafter provideda Third Person Claim, the Indemnifying Party shall have the right does not timely undertake to defend such claim Third Person Claim, or demand by appropriate proceedings, which proceedings shall be promptly settled fails to pursue such defense diligently or prosecuted is otherwise not entitled to a final conclusion, in assume the defense of such a manner as to avoid any risk of Third Person Claim or the Indemnified Party becoming subject is otherwise entitled to liability. If the Indemnified Party desires to participate in, but not control, any assume such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwisedefense, the Indemnified Party shall have may undertake such defense through counsel of its choice, at the right but not cost and expense of the obligation to defend against such claimIndemnifying Party, and the amount of any Indemnified Party may settle such claimThird Person Claim, or if the same be contested by in its discretion, and the Indemnifying Party or shall reimburse the Indemnified Party for the amount paid in such settlement and any other Losses incurred by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)in connection therewith.

Third Person Claims. In the event that 8.4.1 Promptly after an Indemnified Person has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Person Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify Person shall, as a condition precedent to a claim with respect thereto being made against an Indemnifying Person, give the Indemnifying Party Person written notice of such claim, specifying Third Person Claim describing in reasonable detail the nature of such claim and Third Person Claim, a copy of all papers served with respect to that Third Person Claim (if any), an estimate of the amount or of damages attributable to the estimated amount thereof Third Person Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (and the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify basis for the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimPerson's request for indemnification under this Agreement; provided, however, that the failure of the Indemnified party is hereby authorized prior Person to and during the Notice Period to file any motion, answer or other pleading, submission or document which it give timely notice hereunder shall deem necessary or appropriate to protect its interests. In the event that relieve the Indemnifying Party notifies Person of its indemnification obligations under this Agreement to the Indemnified Party within extent, but only to the Notice Period that it does not dispute extent that, such liability and desires failure materially prejudices the Indemnifying Person's ability to defend against such claim or demand, then, except as hereinafter providedclaim. Within fifteen (15) days after receipt of such notice (the "Election Period"), the Indemnifying Party Person shall notify the Indemnified Person whether the Indemnifying Person disputes its potential liability to the Indemnified Person under this Article VIII with respect to that Third Person Claim. 8.4.2 DoveBid shall defend any Third Person Claim, and if DoveBid is the Indemnified Person the costs and expenses incurred by DoveBid in connection with such defense (including but not limited to reasonable attorneys' fees, other professionals' and experts' fees and court or arbitration costs) shall be included in the Damages for which DoveBid may seek indemnity. If an OWP Shareholder is an Indemnified Person in respect of such third person claim, the OWP Shareholder may participate in such defense at its own expense. The Representative shall have the right to defend such claim or demand by appropriate proceedingsreceive copies of all pleadings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost notices and expense. If the Indemnifying Party disputes its liability communications with respect to the Third Person Claim to the extent that receipt of such claim, or elects documents by the Representative does not affect any privilege relating to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party Person, and may participate in settlement negotiations with respect to the Third Person Claim. No Indemnified Person shall enter into any settlement of a Third Person Claim without the prior written consent of the Indemnifying Person (which consent shall not be unreasonably withheld), provided, that if the Indemnifying Person shall have consented in writing to any such settlement, then the right but not Indemnifying Person shall have no power or authority to object to any Claim by the obligation to defend against such claim, and Indemnified Person for indemnity under Article VIII for the amount of any such claimsettlement; and the Indemnifying Person will remain responsible to indemnify the Indemnified Person for all Damages they may incur arising out of, resulting from or if the same be contested caused by the Indemnifying Third- Party or by Claim to the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this fullest extent provided in Article X)VIII.

Third Person Claims. In (a) If any third Person claim, action or suit is brought as to which indemnification will be sought pursuant to this Agreement (a "Third Party Claim") and (i) the event that Third Party Claim is solely for money damages and such Third Party Claim will have no continuing effect in any claim for which a party providing material respect on the business or assets or the Indemnified Party and (ii) the amount claimed pursuant to such Third Party Claim or the potential liability arising out of such Third Party Claim (in the judgment of the Indemnified Party) does not, after taking into account all other indemnification (obligations of the “Indemnifying Party”) would Indemnitor pursuant to this Agreement, exceed the Indemnitor's maximum indemnification obligations pursuant to this Agreement, then the Indemnitor shall be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder participate in the defense of such Third Party Claim and, if the Indemnitor so chooses (and provided that the “Indemnitor so notifies the Indemnified Party in writing within ten (10) days after delivery of the Claim Notice with respect to such Third Party Claim and acknowledges the Indemnitor's obligation to indemnify the Indemnified Party with respect to such Third Party Claim), to assume primary responsibility for the defense, compromise or settlement of such Third Party Claim, with counsel selected by the Indemnitor and not reasonably objected to by the Indemnified Party”. If the Indemnitor assumes such responsibility as set forth in this paragraph, then (x) is asserted against in no event shall the Indemnified Party admit any liability with respect to, or sought to be collected by a third personsettle, compromise or discharge, such Third Party Claim without the Indemnitor's prior written consent and (y) the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires entitled to participate in, but not control, any the defense of such defense or settlement, it may do so Third Party Claim with its own counsel at its own cost and expense. If the Indemnifying Indemnitor does not assume such responsibility as described above, the Indemnified Party disputes its liability with respect to may defend, compromise or settle such claimThird Party Claim in such manner as it may deem appropriate (including without limitation, or elects not to defend against settling such claim, whether by not giving timely notice claim on such terms as provided above or otherwisethe Indemnified Party may deem appropriate). Notwithstanding the foregoing, the Indemnified Party shall have the right to defend, compromise or settle any Third Party Claim described in this Section 11.4(a) if the Indemnified Party waives in writing any right to indemnification by the Indemnitor with respect to such Third Party Claim. (b) If any Third Party Claim is brought as to which indemnification will be sought pursuant to this Agreement (other than a Third Party Claim described in clauses (i) and (ii) of Section 10.4(a)), the Indemnified Party shall have the right to defend, compromise or settle such Third Party Claim, with counsel selected by the Indemnified Party and not reasonably objected to by the Indemnitor. If the Indemnified Party defends such Third Party Claim as set forth in this paragraph, then (i) in no event shall the Indemnitor admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnified Party's prior written consent and (ii) the Indemnitor shall be entitled to participate in, but not control, the obligation defense of such Third Party Claim with its own counsel and at its own expense. If the Indemnified Party does not defend such Third Party Claim, the Indemnitor may defend, compromise or settle such Third Party Claim in such manner as it may deem appropriate (including, without limitation, settling such Third Party Claim, after giving twenty (20) days prior written notice of such settlement to defend against such claim, and the amount of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then on such terms as the Indemnitor may deem appropriate). (c) In the event that, pursuant to Section 10.4(b), the Indemnified Party defends any Third Party Claim and the Indemnified Party proposes to settle such Third Party Claim for an amount which, after taking into account all other indemnification obligations of the Indemnitor pursuant to this Agreement, exceeds the Indemnitor's maximum indemnification obligations pursuant to this Agreement, then, provided that portion thereof as the Indemnitor has acknowledged its obligation to which indemnify the Indemnified Party, the Indemnified Party shall give the Indemintor twenty (20) days prior written notice of such defense is unsuccessfulproposed settlement. The Indemnitor shall notify the Indemnified Party prior to the end of such twenty (20) day period whether the Indemnitor accepts or rejects such proposed settlement; provided, shall be conclusively deemed however, that notwithstanding anything to be a the contrary contained in this Agreement (including any limitation on the liability of the Indemnifying Party hereunder (subjectIndemnitor otherwise provided in this Agreement), if it has timely disputed liabilitythe Indemnitor rejects such proposed settlement, the Indemnitor shall be liable for, and shall prior to the expiration of such 20-day period post a determination performance bond, letter of credit or other similar security (in any such case containing terms and conditions acceptable to the Indemnified Party in its sole discretion) in an amount which equals the amount by which (i) the amount claimed pursuant to such Third Party Claim or, if greater, the potential liability arising out of such Third Party Claim (in the good faith judgment of the Indemnified Party) exceeds (ii) the portion of the proposed settlement that the disputed liability is covered by this Article X)Indemnified Party would be required to pay and not be indemnified for pursuant to such proposed settlement. (d) The party having primary responsibility for the defense of any Third Party Claim shall at all times keep the other party informed as to the status of such Third Party Claim. The party not having primary responsibility for the defense of any Third Party Claim shall cooperate fully with the party having such responsibility in connection with such defense, including, without limitation, furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested.

Third Person Claims. (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within five business days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within 10 business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 10.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) In the event that any legal proceeding shall be threatened or instituted or any claim for or demand shall be asserted by any Person in respect of which a payment may be sought by one party providing indemnification (hereto from the “Indemnifying Party”) would be liable to a other party or any under the provisions of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personthis Article X, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of any such claimclaim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, specifying warranties or covenants contained in this Agreement shall contain a reference to the nature provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (liability asserted against the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt Indemnitor by reason of the Claim Notice (claim. In the “Notice Period”) to notify event of the initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to and during cooperate fully with each other in connection with the Notice Period defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to file defend such proceeding, claim or demand or fails to acknowledge such Indemnitor’s obligations hereunder with respect to any motionsuch proceeding, answer claim or other pleading, submission or document which it shall deem necessary or appropriate demand to protect its interests. In the event that the Indemnifying Party notifies extent the Indemnified Party within is entitled to indemnification pursuant to this Article X, and the Notice Period that it does not dispute Indemnified Party defends against or otherwise deals with any such liability and desires to defend against such proceeding, claim or demand, thenthe Indemnified Party may retain counsel, except as hereinafter at the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld or delayed; provided, that, if the Indemnifying Party shall have Indemnitor wishes to settle any such proceeding which settlement involves only the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to payment of money and includes a final conclusion, in such a manner as to avoid any risk full release of the Indemnified Party becoming subject to liability. If Party, and the Indemnified Party desires does not consent to participate in, but not control, any such defense or settlement, it may do so the Indemnitor shall not have any liability or obligation in excess of the proposed settlement amount. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within 30 days after the date of such notice. (c) To the extent of any such inconsistency between this Section 10.5 and Section 7.2(c) (relating to Tax contests), the provisions of Section 7.2(c) shall control with respect to Tax contests. (d) Notwithstanding any provisions of Section 10.3 or this Section 10.5 to the contrary, Seller hereby acknowledges its indemnification obligations under Section 10.1(a)(vi) without regard to receipt of a Claim Notice or any other notices contemplated by Section 10.3 or this Section 10.5 and hereby elects to continue to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with the matter set forth on Schedule 10.1(a)(vi) of the Seller Disclosure Schedule or any proceeding, claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then demand that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)relates thereto.

Third Person Claims. In the event that any claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant other than an Indemnified Party (a “Third Person”), the “Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, contest, control the defense of or settle the claim alleged by such Third Person (a “Third-Person Claim”); the Indemnified Party may thereafter participate in (but not control) is asserted the defense of any such Third-Person Claim with its own counsel at its own expense. Any settlement must be consented to by the Indemnified Party unless such settlement provides for a full release and satisfaction of all outstanding claims against or sought to be collected by a third personthe Indemnified Party and only involves the payment of money in satisfaction of such claim. Upon the reasonable request of the Indemnifying Party, the Indemnified Party shall promptly notify provide such information as may be reasonably needed by the Indemnifying Party to make a determination of whether or not to assume defense of such claim, specifying . If after the nature receipt of such information the Indemnifying Party shall fail to assume the defense of any such Third-Person Claim within twenty (20) days of receiving written notification of such claim and the amount or the estimated amount thereof to the extent then feasible such requested information: (which estimate shall not be conclusive of the final amount of such claima) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusionParty, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate ingood faith, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice in such manner as provided above or otherwiseit may deem appropriate, the Indemnified Party shall have the right including, but not the obligation to defend against limited to, settling such claim, and the amount after giving at least thirty (30) days’ advance notice of any such claim, or if the same be contested by proposed settlement to the Indemnifying Party or by and receiving the Indemnifying Party’s prior written consent, which may not be unreasonably withheld, on such terms as the Indemnified Party, then that portion thereof as to which such defense is unsuccessfulin good faith, shall be conclusively deemed to be a liability of may deem appropriate; and (b) the Indemnifying Party hereunder may participate in (subjectbut not control) the defense of such action, if it has timely disputed liability, with its own counsel at its own expense. The Parties shall make available to a determination that each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the disputed liability is covered by this Article X)defense thereof.

Third Person Claims. (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within five business days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within 10 business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 10.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) In the event that any legal proceeding shall be threatened or instituted or any claim for or demand shall be asserted by any Person in respect of which a payment may be sought by one party providing indemnification (hereto from the “Indemnifying Party”) would be liable to a other party or any under the provisions of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personthis Article X, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of any such claimclaim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, specifying warranties or covenants contained in this Agreement shall contain a reference to the nature provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (liability asserted against the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt Indemnitor by reason of the Claim Notice (claim. In the “Notice Period”) to notify event of the initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to and during cooperate fully with each other in connection with the Notice Period to file defense, negotiation or settlement of any motionsuch legal proceeding, answer claim or other pleading, submission or document which it shall deem necessary or appropriate to protect its interestsdemand. In To the event that extent the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and the Indemnified Party becoming subject to liability. If defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party desires to participate inmay retain counsel, but not controlat the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such defense proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld; provided, that, if the Indemnitor wishes to settle any such proceeding and the Indemnified Party does not consent to such settlement, it may do so the Indemnitor shall not have any liability or obligation in excess of the proposed settlement amount. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within 30 days after the date of such notice. (c) To the extent of any such claiminconsistency between this Section 10.5 and Section 7.2(c) (relating to Tax contests), or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as provisions of Section 7.2(c) shall control with respect to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Tax contests.

Third Person Claims. (a) In the event that any claim order for which a party providing indemnification (the “Indemnifying Party”) would to be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to any indemnification hereunder (provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the “Indemnified Party”) is asserted against or sought to be collected , such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly after receipt by a such Indemnified Party of written notice of the third personPerson claim. Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnifying Party Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) physically served upon the Indemnified Party relating to the third Person claim, specifying . The failure of any Indemnified Party to give the nature Claim Notice promptly (or in five (5) business days in the case of service of a complaint upon the Indemnified Party) as required by this Section 10.4 shall not affect such claim and the amount or the estimated amount thereof Indemnified Party’s rights under this Article X except to the extent then feasible (which estimate shall not be conclusive such failure is actually prejudicial to the rights and obligations of the final amount of such claimIndemnitor. (b) (In the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt event of the Claim Notice (the “Notice Period”) to notify initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and Table of Contents at its expense. The parties hereto agree to and during cooperate fully with each other in connection with the Notice Period to file defense, negotiation or settlement of any motionsuch legal proceeding, answer claim or other pleading, submission or document which it shall deem necessary or appropriate to protect its interestsdemand. In To the event that extent the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and the Indemnified Party becoming subject to liability. If defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party desires may retain counsel, reasonably acceptable to participate inthe Indemnitor, but not controlat the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such defense proceeding which settlement obligates the other party to pay money, to perform obligations or settlementto admit liability without the consent of the other party, it may do so such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within thirty (30) days after the date of such notice. (c) To the extent of any such claiminconsistency between this Section 10.4 and Section 7.1(c), or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, provisions of Section 7.1(c) shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)control.

Third Person Claims. In Promptly after any party entitled to indemnification under Sections 3.03(c), 9.01, 9.03 or 9.04 hereof (hereinafter the event that “Indemnified Party”) has received notice of or has knowledge of any claim for which by a Person or entity not a party providing to this Agreement (“Third Person”), of the commencement of any action or proceeding by a Third Person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement, the Indemnified Party shall give to the party obligated to provide indemnification pursuant to Sections 3.03(c), 9.01, 9.03 or 9.04 hereof (hereinafter the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, the Indemnified Party shall promptly notify the Indemnifying Party written notice of such claim, specifying claim or the commencement of such action or proceeding. Such notice shall state the nature and the basis of such claim and a reasonable estimate of the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”)thereof. The Indemnifying Party shall have thirty (30) days from the right to defend and settle, at its receipt of own expense and by its own counsel reasonably acceptable to the Claim Notice (Indemnified Party, any such matter so long as the “Notice Period”) Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to defend or settle, it shall promptly notify the Indemnified Party (i) whether or not it disputes of its liability intention to do so, and the Indemnified Party hereunder shall cooperate with respect to such claim; the Indemnifying Party and (ii) if it does its counsel in all commercially reasonable respects in the defense thereof and in any settlement thereof. Such cooperation shall include, but shall not dispute such liabilitybe limited to, whether furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or not it desires, at its sole cost and expense, to defend control. After the Indemnifying Party has notified the Indemnified Party against of its intention to undertake to defend or settle any such claimasserted liability, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability; provided, however, that the Indemnified party is hereby authorized prior Party shall be entitled, at its expense, to and during participate in the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute defense of such asserted liability and desires to defend against such claim or demand, then, except as hereinafter provided, the negotiations of the settlement thereof. The Indemnifying Party shall have not settle any such Third Person claim without the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk consent of the Indemnified Party becoming subject to liability. If Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expenseParty. If the Indemnifying Party disputes its desires to accept a final and complete settlement of any such Third Person claim and the Indemnified Party refuses to consent to such settlement, then the Indemnifying Party’s liability under this Section with respect to such claimThird Person claim shall be limited to the amount so offered in settlement by said Third Person; provided, or elects not to defend against such claimhowever, whether by not giving timely notice as provided above or otherwisethat notwithstanding the foregoing, the Indemnified Party shall have be entitled to refuse to consent to any such proposed settlement and the right but Indemnifying Party’s liability hereunder shall not be limited by the amount of the proposed settlement if such settlement imposes any liability or obligation on, or does not provide for the complete release of, the Indemnified Party. If, upon receiving notice, the Indemnifying Party does not timely undertake to defend against such claimmatter to which the Indemnified Party is entitled to indemnification hereunder, or fails diligently to pursue such defense, the Indemnified Party may undertake such defense through counsel of its choice, at the cost and expense of the Indemnifying Party, and the amount of any Indemnified Party may settle such claimmatter, or if the same be contested by in its discretion, and the Indemnifying Party shall reimburse the Indemnified Party for the amount paid in such settlement and any other liabilities or expenses incurred by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)in connection therewith.

Third Person Claims. In the event that any claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives If an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant other than an Indemnified Party (a “Third Person”), the “Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party, and using counsel reasonably satisfactory to the Indemnified Party, to investigate, contest, control the defense of or settle the claim alleged by such Third Person (a “Third-Person Claim”); the Indemnified Party may thereafter participate in (but not control) is asserted the defense of any such Third-Person Claim with its own counsel at its own expense. Any settlement must be consented to by the Indemnified Party unless such settlement provides for a full release and satisfaction of all outstanding claims against or sought to be collected by a third personthe Indemnified Party and only involves the payment of money in satisfaction of such claim. Upon the reasonable request of the Indemnifying Party, the Indemnified Party shall promptly notify provide such information as may be reasonably needed by the Indemnifying Party to make a determination of whether or not to assume defense of such claim, specifying . If after the nature receipt of such information the Indemnifying Party shall fail to assume the defense of any such Third-Person Claim within twenty (20) days of receiving written notification of such claim and the amount or the estimated amount thereof to the extent then feasible such requested information: (which estimate shall not be conclusive of the final amount of such claima) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusionParty, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate ingood faith, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice in such manner as provided above or otherwiseit may deem appropriate, the Indemnified Party shall have the right including, but not the obligation to defend against limited to, settling such claim, and the amount after giving at least twenty (20) days’ advance notice of any such claim, or if the same be contested by proposed settlement to the Indemnifying Party or by and receiving the Indemnifying Party’s prior written consent, which may not be unreasonably withheld, on such terms as the Indemnified Party, then that portion thereof as to which such defense is unsuccessfulin good faith, shall be conclusively deemed to be a liability of may deem appropriate; and (b) the Indemnifying Party hereunder may participate in (subjectbut not control) the defense of such action, if it has timely disputed liability, with its own counsel at its own expense. The Parties shall make available to a determination that each other all relevant information in their possession relating to any such Third-Person Claim and shall cooperate in the disputed liability is covered by this Article X)defense thereof.

Third Person Claims. In (a) Except with respect to claims related to Taxes, which are covered by Article 5 and the event that Xxxxx Litigation which is covered by the Joint Defense Agreement, if any claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party Proceeding at Law or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) in equity is asserted against or sought to be collected instituted by a third personparty against an Indemnified Party (each, the a “Third Party Claim”) with respect to which an Indemnified Party intends to claim indemnification for any Losses under this Article 7, such Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof give written notice to the extent then feasible (which estimate Indemnitors within 30 days after it has knowledge of a written assertion of liability from the third party and shall not be conclusive of the final amount of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether make any admissions or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimacceptances; provided, however, that the Indemnified party is hereby authorized prior Party shall not be foreclosed from seeking indemnification pursuant to this Article 7 as a result of any failure to provide timely notice of the existence of such Third Party Claim to the Indemnitors except and during only to the Notice Period to file extent that any motion, answer Indemnitor has been materially damaged or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute prejudiced as a result of such liability and desires to defend against such claim or demand, then, except delay. (b) Except as hereinafter providedotherwise provided herein, the Indemnifying Party Indemnitors shall have the right to defend such claim or demand by appropriate proceedingsconduct and control, at their own expense, through counsel of its choosing (which proceedings counsel shall be promptly settled or prosecuted reasonably satisfactory to the Indemnified Party), the defense of a final conclusion, in such a manner Third Party Claim so long as to avoid any risk of the Indemnitors notify the Indemnified Party becoming subject that they have agreed to liability. If indemnify the Indemnified Party desires (subject to participate inthe limitations on indemnification set forth herein) for any and all Losses arising out of or resulting from the Third Party Claim that it is assuming the right to conduct and control the defense of within 15 business days of its receipt of the initial notice of the Third Party Claim, but not control, any such defense or settlement, it may and shall do so vigorously and in good faith; provided, however, that the Indemnified Party may participate at its own cost expense, with counsel of its choosing, in the defense of such third party action or suit although such action or suit shall be controlled by the Indemnitors. Notwithstanding the foregoing, in connection with any Third Party Claim as to which the Indemnified Party shall reasonably conclude that (i) there is a material conflict of interest between any of the Indemnitors and expense. If the Indemnifying Indemnified Party disputes its liability with respect in the conduct of the defense of such Third Party Claim, (ii) there are specific defenses available to such claimthe Indemnified Party which are different from or additional to those available to the Indemnitors and which could be materially adverse to any of the Indemnitors, (iii) the Third Party Claim is for an amount greater than the Cap or elects not to defend less than the Deductible or (iv) the Third Party Claims seeks an order, injunction or other equitable relief or relief for other than money damages against such claimthe Indemnified Party, whether by not giving timely notice as provided above or otherwise, then the Indemnified Party shall have the right but not right, at the obligation expense of the Indemnitors, to defend against conduct and control, through counsel of its choosing, the defense of such claimThird Party Claim and shall do so in good faith; provided, and however, that in each of the amount of any such claim, or if forgoing cases the Indemnitors shall have the same be contested by right to participate in the Indemnifying Party or by defense, subject to the control of the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, at its own expense. (c) Neither the Indemnified Party nor the Indemnitors shall be conclusively deemed to be a liability settle any Third Party Claim without the consent of the Indemnifying other party, which consent shall not be unreasonably withheld. Any compromise or settlement of the Third Party hereunder (subject, if it has timely disputed liability, Claim under this Section 7.5 shall include as an unconditional term thereof the giving by the claimant in question to the Indemnitors and the Indemnified Party of a determination that the disputed liability is covered by this Article X)release of all liabilities in respect of such claims.

Third Person Claims. (a) In the event that any claim order for which a party providing indemnification (the “Indemnifying Party”) would to be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to any indemnification hereunder (provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the “Indemnified Party”) is asserted against or sought to be collected , such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly after receipt by a such Indemnified Party of written notice of the third personPerson claim. Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnifying Party Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) physically served upon the Indemnified Party relating to the third Person claim, specifying . The failure of any Indemnified Party to give the nature Claim Notice promptly (or in five (5) business days in the case of service of a complaint upon the Indemnified Party) as required by this Section 9.4 ----------- shall not affect such claim and the amount or the estimated amount thereof Indemnified Party's rights under this Article IX except to the extent then feasible (which estimate shall not be conclusive such failure is actually ---------- prejudicial to the rights and obligations of the final amount Indemnitor. (b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder; provided, -------- however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its ------- expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party may retain counsel, reasonably acceptable to the Indemnitor, at the expense of the Indemnitor, and control the defense of such claim) (proceeding. Neither the “Claim Notice”)Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. The Indemnifying After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall have forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier's check within thirty (30) days from its receipt after the date of such notice. (c) To the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; extent of any inconsistency between this Section 9.4 and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter providedSection 6.1(c), the Indemnifying Party provisions of Section 6.1(c) ----------- -------------- -------------- shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X).

Third Person Claims. In Promptly after any party hereto (the event that "Indemnified Party") has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person") or the “Indemnifying Party”) would be liable commencement of any action or proceeding by a Third Person that may give rise to a right of indemnification hereunder, such Indemnified Party shall give to the party or any of its officers, directors, partners, employees, agents or representatives entitled obligated to provide indemnification hereunder (the “Indemnified an "Indemnifying Party”") is asserted against or sought to be collected by a third person, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature written notice of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount commencement of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether action or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimproceeding; provided, however, that the Indemnified party is hereby authorized prior failure to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the give such notice will not relieve such Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such from liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability under this Section with respect to such claim, action or elects not proceeding, except to defend against the extent that the Indemnifying Party has been actually prejudiced as a result of such failure and any costs of defense arising prior to the date of notice. The Indemnifying Party (at its own expense) shall have the right and shall be given the opportunity to associate with the Indemnified Party in the defense of such claim, whether by not giving timely notice as suit or proceedings, provided above or otherwise, that counsel for the Indemnified Party shall have act as lead counsel in all matters pertaining to the right but not the obligation defense or settlement of such claims, suit or proceedings. The Indemnified Party shall not, except at its own cost, make any settlement with respect to defend against such claim, and the amount of any such claim, suit or if proceeding without the same prior consent of the Indemnifying Party, which consent shall not be contested unreasonably withheld or delayed. It is understood and agreed that in situations where failure of the Indemnified Party to settle a claim expeditiously could have an adverse effect on the Indemnified Party, the failure of the Indemnifying Party to act upon the Indemnified Party's request for consent to such settlement within five business days of the Indemnifying Party's receipt of notice thereof from the Indemnified Party shall be deemed to constitute consent by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which of such defense is unsuccessful, shall be conclusively deemed to be a liability settlement for purposes of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Section.

Third Person Claims. In (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the event that any Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third-Person claim for which a party providing indemnification within fifteen (15) days after receipt by such Indemnified Party of written notice of the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personthird-Person claim. Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor, within ten (10) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third-Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third-Person claim, the Indemnified Party shall notify the Indemnifying Party Indemnitor with a copy of the complaint within ten (10) Business Days after receipt thereof and shall deliver to the Indemnitor within ten (10) Business Days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third-Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. Any notice of a claim by reason of any of the representations, specifying warranties or covenants contained in this Agreement shall refer to the nature provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail, the facts giving rise to an alleged basis for the claim and the amount or of the estimated amount thereof liability (if known) asserted against the Indemnitor by reason of the claim. Buyer shall be permitted to amend its claim at any time and from time to time, prior to the extent then feasible (which estimate shall not be conclusive termination date of the final amount of such claimapplicable representation, warranty or covenant. (b) (the “Claim Notice”). The Indemnifying Party Indemnitor shall have thirty (30) days from its the right after the receipt of the Claim Notice (the “Notice Period”) notice, at its option and at its own expense, to notify the Indemnified Party (i) whether or not it disputes its liability be represented by counsel reasonably satisfactory to the Indemnified Party hereunder and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against hereunder, provided that (i) such proceeding, claim or demand involves only money damages and does not seek an injunction or other equitable relief that would materially impact the operations or business activities of the Acquired Companies, (ii) such proceeding, claim or demand does not relate to any criminal matter, (iii) the Indemnitor conducts the defense of the third-Person claim actively and diligently and (iv) the settlement of, or an adverse judgment with respect to, the third-Person claim is not reasonably likely to establish a precedential custom or practice that is or would constitute a Buyer Material Adverse Effect. In the event the Indemnified Party assumes the defense pursuant to clause (iv) of the immediately preceding sentence, to the extent the related Loss or Expense of the Indemnified Party is an indemnifiable Loss or Expense, the Indemnitor shall pay and satisfy all of such Losses and Expenses. Upon Buyer’s request, the Indemnitor will apprise the Indemnified Party of any material development, including a settlement offer, with respect to the third-Person claim. So long as the Indemnitor is conducting the defense of the third-Person claim in accordance with this Section 11.5(b) (and all conditions thereunder remain satisfied), the Indemnitor will not be responsible for any attorneys’ fees or other expenses incurred by the Indemnitor regarding the third-Person claim provided, however, that the Indemnified Party may participate in (but not control) any proceeding with respect to such claim; third-Person claim with counsel of its choice and (ii) if it does not dispute at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such liabilitylegal proceeding, whether claim or not it desiresdemand. The Indemnified Party shall make available to the Indemnitor, at its sole cost and the Indemnitor’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably requested by the Indemnitor in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor is not permitted to, or otherwise elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such claimproceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding; provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.5 to pay for only one (1) firm of counsel for all Indemnified party is hereby authorized prior to and during Parties plus one (1) additional local counsel firm. Neither the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies Indemnitor nor the Indemnified Party within may settle any such proceeding which settlement obligates the Notice Period that it does not dispute such other party to pay money, to perform obligations or to admit liability and desires to defend against such claim or demand, then, except as hereinafter provided, without the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk consent of the Indemnified Party becoming subject other party, such consent not to liabilitybe unreasonably withheld, delayed or conditioned. If the Indemnified Party desires shall refuse to participate inconsent to the Indemnitor’s settlement of any third-Person claim, but not control, any such defense so long as only money damages are involved and there is no admission of liability or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such third-Person claim shall not exceed the amount for which the third-Person claim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with such proposed settlement of such third-Person claim. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or elects not a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to defend against such claim, whether each separate matter alleged to be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within thirty (30) days after the date of such notice. (c) To the extent of any such claiminconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as provisions of Section 8.1(c) shall control with respect to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Tax contests.

Third Person Claims. In the event that indemnification is sought pursuant to SECTION 10.1 OR 10.2: (a) promptly after any party hereto (hereinafter the "INDEMNIFIED PARTY") has received notice of or has actual knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("THIRD PERSON"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "THIRD PARTY CLAIM") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to SECTION 10.1 OR 10.2 hereof (hereinafter the "INDEMNIFYING PARTY"), give the Indemnifying Party written notice of such claim, specifying Third Party Claim describing in reasonable detail the nature of such claim and Third Party Claim, a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the amount or of damages attributable to the estimated amount thereof Third Party Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party's request for indemnification under this Agreement; provided, however, that the failure of the Indemnified Party to give timely notice hereunder shall relieve the Indemnifying Party of its indemnification obligations under this Agreement. Within twenty (20) days after receipt of such notice (the “Claim Notice”"ELECTION PERIOD"). The , the Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (ia) whether or not it the Indemnifying Party disputes its potential liability to the Indemnified Party hereunder under this SECTION 10 with respect to such claim; that Third Party Claim and (iib) if it the Indemnifying Party does not dispute such liabilityits potential liability to the Indemnified Party with respect to that Third Party Claim, whether or the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against that Third Party Claim. (b) if the Indemnifying Party does not it desiresdispute its potential liability to the Indemnified Party and notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim through counsel of its own choosing, then the Indemnifying Party shall have the right to defend, at its sole cost and expense, that Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to defend a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this SECTION 10.4 and the Indemnified Party against such claimwill furnish the Indemnifying Party with all information in its possession with respect to that Third Party Claim and otherwise cooperate with the Indemnifying Party in the defense of that Third Party Claim; provided, however, that the Indemnifying Party shall not enter into any settlement with respect to any Third Party Claim that purports to limit the activities of, or otherwise restrict in any way, any Indemnified party Party or any affiliate of any Indemnified Party without the prior consent of that Indemnified Party (which consent shall not be unreasonably withheld). The Indemnifying Party is hereby authorized prior authorized, at the sole cost and expense of the Indemnifying Party, to and file, during the Notice Period to file Election Period, any motion, answer or other pleading, submission or document which it pleadings that the Indemnifying Party shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim interests or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk those of the Indemnified Party becoming subject to liabilityParty. If the The Indemnified Party desires to may participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If settlement of any Third Party Claim controlled by the Indemnifying Party disputes pursuant to this SECTION 10.4 and will bear its liability own costs and expenses with respect to that participation; provided, however, that if the named parties to any such claimaction (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party, and that it would be a non-waivable conflict of interest for counsel for the Indemnifying Party to also represent the Indemnified Party in such action, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, and, on its written notification of that employment, the Indemnifying Party shall not have the right to assume or continue the defense of such action on behalf of the Indemnified Party; provided, however, the Indemnified Party shall not enter into any settlement with respect to any such Third Party Claim without the prior written consent of the Indemnifying Parties (which consent shall not be unreasonably withheld). In the event a waivable conflict of interest arises, as described in preceding sentence, the Indemnified Party hereby grants such a waiver and will sign whatever further documentation the Indemnifying Party may reasonably require to confirm such a waiver. (c) if the Indemnifying Party (i) within the Election Period (A) disputes its potential liability to the Indemnified Party under this SECTION 10.4, (B) elects not to defend against such claimthe Indemnified Party pursuant to SECTION 10.4 or (C) fails to notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to SECTION 10.4 or (ii) elects to defend the Indemnified Party pursuant to SECTION 10.4 but fails diligently and promptly to prosecute or settle the Third Party Claim, whether by not giving timely notice as provided above or otherwise, then the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount Third Party Claim by all appropriate proceedings. If it is determined after resolution of any such claim, or if the same be contested by all disputes that the Indemnifying Party or by failed to fulfill its obligations under SECTION 10.1 OR 10.2 with regard to the Indemnified Partydefense of such Third Party Claim, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it shall be obligated to reimburse the Indemnified Party for any expenses the Indemnified Party has timely disputed liability, incurred to a determination that the disputed liability is covered by this Article X)defend such claim.

Third Person Claims. In (i) Promptly after any party hereto (herein ------------------- the event that "Indemnified Party") has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to Section 11.1 or 11.2 hereof (herein the "Indemnifying Party"), give the Indemnifying Party written notice of such claim, specifying Third Party Claim describing in reasonable detail the nature of such claim and Third Party Claim, a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the amount or of damages attributable to the estimated amount thereof Third Party Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party's request for indemnification under this Agreement; provided, however, that the failure -------- ------- of the Indemnified Party to give timely notice hereunder shall relieve the Indemnifying Party of its indemnification obligations under this Agreement to the extent, but only to the extent that, such failure materially prejudices the Indemnifying Party's ability to defend such claim. Within fifteen (15) days after receipt of such notice (the “Claim Notice”"Election Period"). The , the Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (ia) whether or not it the Indemnifying Party disputes its potential liability to the Indemnified Party hereunder under this Section 11 with respect to such claim; that Third Party Claim and (b) if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to that Third Party Claim, whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against that Third Party Claim. (ii) if it If the Indemnifying Party does not dispute such liabilityits potential liability to the Indemnified Party and notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim through counsel of its own choosing which is acceptable to the Indemnified Party, whether or not it desiresthen the Indemnifying Party shall have the right to defend, at its sole cost and expense, that Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to defend a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 11.3(ii) and the Indemnified Party against such claimwill furnish the Indemnifying Party with all information in its possession with respect to that Third Party Claim and otherwise cooperate with the Indemnifying Party in the defense of that Third Party Claim; provided, however, -------- ------- that the Indemnifying Party shall not enter into any settlement with respect to any Third Party Claim that purports to limit the activities of, or otherwise restrict in any way, any Indemnified party Party or any affiliate of any Indemnified Party without the prior consent of that Indemnified Party (which consent may be withheld in the sole discretion of that Indemnified Party). The Indemnified Party is hereby authorized prior authorized, at the sole cost and expense of the Indemnifying Party, to and file, during the Notice Period to file Election Period, any motion, answer or other pleading, submission or document which it pleadings that the Indemnified Party shall deem necessary or appropriate to protect its interestsinterests or those of the Indemnifying Party. In The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the event Indemnifying Party pursuant to this Section 11.3(ii) and will bear its own costs and expenses with respect to that participation; provided, however, that if the named parties to any such -------- ------- action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, and, on its written notification of that employment, the Indemnifying Party shall not have the right to assume or continue the defense of such action on behalf of the Indemnified Party. (iii) If the Indemnifying Party (a) within the Election Period (1) disputes its potential liability to the Indemnified Party under this Section 11, (2) elects not to defend the Indemnified Party pursuant to Section 11.3(ii) or (3) fails to notify the Indemnified Party that the Indemnifying Party notifies elects to defend the Indemnified Party within the Notice Period that it does not dispute such liability and desires pursuant to Section 11.3(ii) or (b) elects to defend against such claim the Indemnified Party pursuant to Section 11.3(ii) but fails diligently and promptly to prosecute or demandsettle the Third Party Claim, then, except as hereinafter provided, then the Indemnifying Indemnified Party shall have the right to defend such claim or demand defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly settled or and vigorously prosecuted by the Indemnified Party to a final conclusionconclusion or settled. The Indemnified Party shall have full control of such defense and proceedings. Notwithstanding the foregoing, if the Indemnifying Party has delivered a written notice to the Indemnified Party to the effect that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 11 and if such dispute is resolved in such a manner as favor of the Indemnifying Party, the Indemnifying Party shall not be required to avoid any risk bear the costs and expenses of the Indemnified Party becoming subject Party's defense pursuant to liability. If this Section 11.3 or of the Indemnifying Party's participation therein at the Indemnified Party's request. The Indemnifying Party desires to may participate in, but not control, any such defense or settlementsettlement controlled by the Indemnified Party pursuant to this Section 11.3(iii), it may do so at its own cost and expense. If the Indemnifying Party disputes shall bear its liability own costs and expenses with respect to such claimparticipation. (iv) The parties hereto will make appropriate adjustments for any Tax benefits, Tax detriments or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and insurance proceeds in determining the amount of any such claimindemnification obligation under this Section 11, or if the same be contested by the provided that no -------- Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively obligated to seek any payment pursuant to the terms of any insurance policy. All indemnification payments under this Section 11 shall be deemed adjustments to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Merger consideration provided for herein.

Third Person Claims. In the event that (a) If any Southcross Indemnitee, TexStar Indemnitee or Company Indemnitee (any such Person, an “Indemnified Party”) has received notice or otherwise has knowledge of any claim for which by any Person who is not a party providing Party or the commencement of any Proceeding by such Person who the Indemnified Party believes in good faith has an indemnifiable claim under this Agreement (a “Third Person Claim”), the Indemnified Party shall deliver a Claim Notice with respect thereto to the Party obligated to provide indemnification pursuant to Section 10.1 or Section 10.2 (the “Indemnifying Party”) would be liable ); provided, however, that the failure or delay to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, the Indemnified Party shall promptly so notify the Indemnifying Party of shall not relieve the Indemnifying Party from liability for such claim, specifying the nature of such claim and the amount or the estimated amount thereof Third Person Claim except to the extent then feasible (which estimate shall not be conclusive that such failure or delay results in the loss or forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the final amount Indemnifying Party with respect to such Third Person Claim or increased indemnification expenses incurred as a direct result of such claim) (failure or delay to so notify. The Claim Notice shall state the “Claim Notice”)nature and the basis of such Third Person Claim. The Indemnifying Party shall have thirty the right to defend and settle any such Third Person Claim, at its own expense and by its own counsel (30reasonably acceptable to the Indemnified Party) days from if the Indemnifying Party provides written notice to the Indemnified Party (within five Business Days of its receipt of the Claim Notice (the “Notice Period”Notice) declaring its intention to notify defend or settle such Third Person Claim and acknowledging its obligations to indemnify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; Third Person Claim in accordance with this Article X. (b) If the Indemnifying Party notifies the Indemnified Party of its intention to undertake the defense or settlement of such Third Person Claim pursuant to Section 10.4(a), the Indemnified Party shall cooperate with the Indemnifying Party and (ii) if it does not dispute such liability, whether or not it desiresits counsel, at its the Indemnifying Party’s sole cost and expense, to defend in all commercially reasonable respects in the defense thereof and in any settlement thereof. Such cooperation shall include furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. After the Indemnifying Party has notified the Indemnified Party against of its intention to undertake the defense or settlement of such claimThird Person Claim pursuant to Section 10.4(a), the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such Third Person Claim; provided, however, that the Indemnified party is hereby authorized prior Party shall be entitled, at its expense, to participate in the defense of such Third Person Claim and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In negotiations of the event that the settlement thereof. (c) The Indemnifying Party notifies shall not settle any Third Person Claim without the consent of the Indemnified Party within unless the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, the Indemnified Party and further involves no injunction or equitable relief upon the Indemnified Party and no limitation on the future operation of the business, assets or property of the Company, its Subsidiaries or their respective Affiliates. (d) If, upon receiving a Claim Notice Period that it does not dispute such liability and desires with respect to defend against such claim or demand, then, except as hereinafter provideda Third Person Claim, the Indemnifying Party shall have the right does not timely undertake to defend such claim Third Person Claim, or demand by appropriate proceedings, which proceedings shall be promptly settled fails to pursue such defense diligently or prosecuted is otherwise not entitled to a final conclusion, in assume the defense of such a manner as to avoid any risk of Third Person Claim or the Indemnified Party becoming subject is otherwise entitled to liability. If the Indemnified Party desires to participate in, but not control, any assume such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwisedefense, the Indemnified Party shall have may undertake such defense through counsel of its choice, at the right but not cost and expense of the obligation to defend against such claimIndemnifying Party, and the amount of any Indemnified Party may settle such claimThird Person Claim, or if the same be contested by in its discretion, and the Indemnifying Party or shall reimburse the Indemnified Party for the amount paid in such settlement and any other Losses incurred by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)in connection therewith.

Third Person Claims. In the event that (a) Promptly after any party entitled to indemnification under Sections 8.02 or 8.03 hereof (in such capacity, an “Indemnified Party”) has received notice of or has knowledge of any claim for which by a Person not a party providing to this Agreement (a “Third Person”), or of the commencement of any action or proceeding by a Third Person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement (a “Third Person Claim”), the Indemnified Party shall give to the party obligated to provide indemnification pursuant to Sections 8.02 or 8.03 hereof (in such capacity, the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature prompt written notice of such claim or the commencement of such action or proceeding (a “Claim Notice”). Such Claim Notice shall state the nature and the amount or the estimated amount thereof basis of such Third Person Claim and (to the extent then feasible feasible) a reasonable estimate of the amount being claimed (which estimate shall will not be conclusive of the final amount of such claim) (the “Claim Notice”Third Person Claim). The Except as Section 8.01 sets forth, the failure to promptly deliver a Claim Notice will not relieve the Indemnifying Party shall have thirty (30) days from of its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability obligations to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, the related Third Person Claim except to defend the Indemnified Party against such claim; provided, however, extent that the Indemnified party resulting delay is hereby authorized prior prejudicial to the defense of that Third Person Claim. Notwithstanding the foregoing and during the Notice Period to file any motionfollowing provisions of Section 8.04(b), answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings Buyer shall be promptly settled or prosecuted deemed to have delivered a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability sufficiently detailed Claim Notice with respect to such claim, or elects not each of the items set forth in Schedule 8.02 and with respect to defend against such claim, whether by not giving timely notice as provided above or otherwise, each of the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount Existing Environmental Conditions referenced in clause (v) of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof Section 8.02(a) as to which Remediation Activities have been initiated prior to the Closing Date, and, to the extent any such items may involve any defense is unsuccessfulof any Third Person Claims, Shareholders shall be conclusively deemed to be a liability have elected to assume the defense of such Third Person Claims in accordance with the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article Xprovisions of Section 8.04(b).

Third Person Claims. In the event that 8.13.1 If any claim for or demand in respect of which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “an Indemnified Party”) Party might seek indemnity under this Article 8 is asserted against or sought to be collected such Indemnified Party by a third personPerson other than a Party hereto (a “Third Party Claim”), the Indemnified Party shall promptly give a Claim Notice, including copies of all relevant pleadings, documents and information, to the Indemnifying Party within five (5) Business Days following the receipt of notice of the Third Party Claim by the Indemnified Party; provided, that, the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof its obligations hereunder except to the extent then feasible (which estimate shall not be conclusive of that the final amount of Indemnifying Party is materially prejudiced by such claim) (the “Claim Notice”)failure. The Indemnifying Party shall have thirty five (305) days from Business Days after its receipt of the such Claim Notice (the “Notice Third Party Claim Response Period”) ), within which to notify the Indemnified Party (i) whether or not it disputes its liability give notice to the Indemnified Party hereunder with respect Party, in writing, either denying its obligations to, or agreeing to such claim; fully, indemnify and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Third Party against such claim; providedClaim under this Article 8. 8.13.2 Subject to Section 8.13.3, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that if the Indemnifying Party notifies the Indemnified Party that it agrees to fully indemnify and defend the Indemnified Party against the Third Party Claim within the Notice Third Party Claim Response Period that it does then the Indemnifying Party may assume the conduct and control through counsel reasonably acceptable to the Indemnified Party of the defense of such Third Party Claim and shall at its expense defend such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted to a final conclusion or will be settled, and shall pay all Losses of the Indemnified Party incurred or accrued and paid and resulting or arising from such Third Party Claim; provided, that, unless consented to by the Indemnified Party (which consent shall not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter providedbe unreasonably withheld), the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedingsnot enter into any settlement that (i) does not fully, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of finally and unconditionally release the Indemnified Party becoming subject from all Liability with respect to liabilitysuch Third Party Claims, (ii) requires a non-monetary commitment by the Indemnified Party, including but not limited to compliance with an injunction or other equitable relief. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnifying Party shall be responsible for posting any bonds or other security required in connection with such Third Party Claim, or (iii) could reasonably be expected to result in Losses (cumulative of all Losses to which the Indemnified Party desires may be entitled under this Article 8) in excess of the Cap. The Indemnified Party will reasonably cooperate in such defense, including making available to the Indemnifying Party all records and documents within the Indemnified Party’s control or that it can reasonably obtain relating to the Third Party Claim, and all costs or expenses incurred or accrued and paid by the Indemnified Party at the request of the Indemnifying Party shall be paid by the Indemnifying Party promptly as statements are received. An Indemnified Party, at its expense, may participate in, but not control, any defense or settlement of any Third Party Claim conducted by the Indemnifying Party pursuant to this Section 8.13.2 or take any other actions it reasonably believes to be necessary or appropriate to protect its interests. 8.13.3 If (i) the Indemnifying Party fails to assume the defense of a Third Party Claim in accordance with Section 8.13.2 within the Third Party Claim Response Period, (ii) an Indemnified Party determines in good faith that an adverse determination with respect to the proceeding giving rise to such claim would cause a Material Adverse Effect on the Indemnified Party’s reputation or future business prospects, (iii) the Claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (iv) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party, (v) under applicable standards of professional conduct, a conflict of interest on any significant issue related to such proceeding exists between the Indemnifying Party, on the one hand, and an Indemnified Party, on the other hand, or (vi) the Indemnifying Party is failing to diligently prosecute or defend such Third Party Claim, then, in each case, upon notice to the Indemnifying Party, the Indemnified Party may, in its sole discretion, retain counsel satisfactory to it to assume such defense or settlementon behalf of and for the sole account and risk of the Indemnifying Party, it may do so at and in the case of clauses (i) through (vi) the Indemnifying Party shall pay all reasonable fees and expenses of such counsel for the Indemnified Party, and the Indemnifying Party and the Indemnified Party shall cooperate in the defense of any such matter. In the event that the Indemnified Party assumes the conduct and control of the defense of a Third Party Claim, then the Indemnifying Party shall not be liable for any settlement effected without its own cost and expense. prior written consent (which consent shall not be unreasonably withheld). 8.13.4 If the Indemnifying Party disputes notifies the Indemnified Party that it acknowledges its liability obligation to indemnify and defend the Indemnified Party with respect to such claima Third Party Claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Losses of the Indemnified Party shall have the right but not the obligation to defend against incurred or accrued and paid and resulting from or arising out of such claim, and Third Party Claim in the amount of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall finally determined will be conclusively deemed to be a liability Loss of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by under this Article X)8, and the Indemnifying Party shall pay the full amount of such Losses to the Indemnified Party on demand.

Third Person Claims. In (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the event that Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within 10 days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) If any action, lawsuit or other legal proceeding shall be threatened or instituted or any claim for or demand shall be asserted by any Person in respect of which a payment may be sought by one party providing indemnification (hereto from the “Indemnifying Party”) would be liable to a other party or any under the provisions of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personthis Article XI, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of any such claimclaim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, specifying warranties or covenants contained in this Agreement shall refer to the nature provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and, to the extent known, describe in reasonable detail the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor by reason of the claim. In the event of the initiation of any action, claim, lawsuit or other legal proceeding against the estimated amount thereof Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option (which must be exercised in writing within 30 days following receipt of such notice) and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with such third Person claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party indemnified against such claimhereunder; provided, however, that the Indemnified party Party may participate in any such proceeding with counsel of its choice and at its expense; provided, further, that if the Indemnified Party has been advised by its outside counsel that there may exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnitor and the Indemnified Party, then any such expenses shall be promptly paid or reimbursed by the Indemnitor. Prior to assuming control of the defense of any third Person claim pursuant to the preceding sentence, the Indemnitor must acknowledge in writing that it has an indemnity obligation for any Losses or Expenses resulting from such third Person claim, subject to the applicable limitations set forth in this Article XI. Notwithstanding anything herein to the contrary, the Indemnitor shall not be entitled to assume or maintain control of the defense of any third Person claim, shall not be entitled to settle or compromise any such claim, and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party, if (A) the third Person claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (B) the third Person claim seeks injunctive or equitable relief against the Indemnified Party or (C) the Indemnitor has not elected to defend or is hereby authorized prior failing to defend in good faith the third Person claim. Each of the parties hereto agrees to, and during to cause its Affiliates to, cooperate fully with the Notice Period to file other parties in connection with the defense, negotiation or settlement of any motionsuch action, answer claim, lawsuit or other pleadinglegal proceeding, submission or document demand and to make available to the other parties all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is reasonably required by the other parties. To the extent the Indemnitor elects not to defend such third Person claim, and the Indemnified Party defends against or otherwise deals with any such third Person claim, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding; provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.5 to pay for only one firm of counsel for all Indemnified Parties. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which it shall deem necessary settlement obligates the other party to pay money, to perform obligations or appropriate to protect its interestsadmit liability without the consent of the other party, such consent not to be unreasonably withheld. In the event that the Indemnifying Party notifies the Indemnified Party within shall refuse to consent to the Notice Period that it does not dispute settlement of any third Person claim, so long as (x) only money damages are involved; (y) there is no admission of liability or wrongdoing with respect to the Indemnified Party and (z) such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk proposed settlement provides an unqualified release of the Indemnified Party becoming subject to liability. If from all liability in respect of such third Person claim, then, the liability of the Indemnitor in respect of such third Person claim shall not exceed the amount for which the third Person claim could have been settled plus the amount of expenses incurred by the Indemnified Party desires prior to participate inthe time of the proposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, but not controlarbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, any such defense or settlementa settlement shall have been consummated, it may do so or the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within 15 days after the date of such notice. (c) To the extent of any such claiminconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as provisions of Section 8.1(c) shall control with respect to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Tax contests.

Third Person Claims. In the event that any If a claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personPerson is made against an Indemnified Party, the and if such Indemnified Party intends to seek indemnity with respect thereto under this Article IX, such Indemnified Party shall promptly notify the Indemnifying Party Indemnitor in writing of such claim, specifying the nature of setting forth such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”in reasonable detail, as specified in Section 9.3(a). The Indemnifying Party Indemnitor shall have thirty twenty (3020) days from its after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the Claim Notice (the “Notice Period”) to notify settlement or defense thereof, and the Indemnified Party (i) whether or not shall cooperate with it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimin connection therewith; provided, however, that the Indemnified party Party may participate in such settlement or defense and in doing so shall be entitled to retain one firm of separate counsel of its own choosing (along with any reasonably required local counsel), the costs and expenses of which shall be paid out of the Indemnification Escrow Fund, if (i) the Indemnitor fails within a reasonable time to retain counsel; (ii) the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnitor and the Indemnified Party is hereby authorized prior prohibited or barred from asserting such legal defenses; or (iii) the named parties in any such proceeding (including any impleaded parties) include both the Indemnitor and the Indemnified Party and representation of both sets of parties by the same counsel would be inappropriate due to and during actual or potential conflicts of interest between them. If the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies Indemnitor does not notify the Indemnified Party within twenty (20) days after receipt of the Notice Period Indemnified Party’s notice of a claim of indemnity hereunder that it does not dispute such liability and desires elects to defend against undertake the defense thereof, or fails to diligently pursue the defense thereof, the Indemnified Party, without waiving any right to indemnity with respect to such claim or demandpursuant to this Agreement, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend undertake (upon delivering notice to such effect to the Indemnitor), at Indemnitor’s cost, risk and expense, the defense, compromise or settlement of the claim, and the Indemnitor shall be liable for any resulting settlement of such claim and for any final judgment with respect thereto; provided, however, that the Indemnified Party shall not pay or demand by appropriate proceedingssettle any such claim without the consent of the Indemnitor, which proceedings consent shall not be promptly settled unreasonably withheld. The Indemnitor may not settle or prosecuted to a final conclusion, in such a manner as to avoid compromise any risk third Person claim without the prior written consent of the Indemnified Party becoming subject to liabilityParty, which consent shall not be unreasonably withheld or delayed. If In the event the Indemnitor assumes the defense of the claim, the Indemnitor shall keep the Indemnified Party desires to participate in, but not control, reasonably informed of the progress of any such defense defense, compromise or settlement, it may do so at its own cost and expense. If in the Indemnifying event the Indemnified Party disputes its liability with respect to such assumes the defense of the claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have keep the right but not Indemnitor reasonably informed of the obligation to defend against such claim, and the amount progress of any such claimdefense, compromise or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)settlement.

Third Person Claims. In (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the event that any claim for which Indemnified Party (a party providing indemnification (the “Indemnifying PartyThird Person Claim”) would be liable to a party shall notify the Indemnitor in writing, and in reasonable detail, of the Third Person Claim within ten (10) Business Days (or any reasonably more promptly dependent upon the circumstances) after receipt by such Indemnified Party of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (written notice of the “Indemnified Party”) is asserted against or sought to be collected by a third personThird Person claim. Thereafter, the Indemnified Party shall promptly notify deliver to the Indemnifying Party Indemnitor, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the Third Person Claim. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim, specifying claim is based and describe in reasonable detail (to the nature of such extent known) the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor by reason of the Third Person Claim; provided, however, that the failure or delay of the estimated amount thereof Indemnified Party to give notice to the Indemnitor as provided in this Section 8.4 shall not relieve the Indemnitor of its obligations hereunder except to the extent then feasible the Indemnitor shall have been prejudiced by such failure. (which estimate shall not be conclusive b) In the event of the final amount initiation of such claim) (a Third Person Claim, the “Claim Notice”). The Indemnifying Party Indemnitor shall have thirty (30) days from its the sole and absolute right after the receipt of the Claim Notice (the “Notice Period”) notice, at its option and at its own expense, to notify the Indemnified Party (i) whether or not it disputes be represented by counsel of its liability choice, which counsel shall be reasonably acceptable to the Indemnified Party hereunder Party, and to control, defend against, negotiate, settle or otherwise deal with respect any proceeding, claim, or demand which relates to such claim; and (ii) if it does not dispute such liabilityany loss, whether liability or not it desires, at its sole cost and expense, to defend the Indemnified Party damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior to Party may participate in any such proceeding with counsel of its choice and during the Notice Period to file any motionat its expense; provided, answer or other pleadinghowever, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies Indemnitor shall not be entitled to assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim relates to or arises in connection with any criminal Proceeding or (ii) the Third Person Claim seeks an injunction or equitable relief against any Indemnified Party. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any Third Person Claim. To the extent the Indemnitor elects not to or fails to defend such Third Person Claim and the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend defends against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwiseotherwise deals therewith, the Indemnified Party may retain counsel at the expense of the Indemnitor, which counsel shall have be reasonably acceptable to the right but not the obligation to defend against such claimIndemnitor, and control the amount defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability, or which fails to fully and unconditionally release the other party from liability, without the consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed. (c) To the extent of any such claiminconsistency between this Section 8.4 and Section 7.1(c) (relating to Tax contests), or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as provisions of Section 7.1(c) shall control with respect to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Tax contests.

Third Person Claims. In the event (i) If any Third Person notifies any Indemnified Person with respect to any matter (a “Third Person Claim”) that any may give rise to a claim for which a party providing indemnification (the “against an Indemnifying Party”) would be liable to a party Party under Section 8.1 or any of its officersSection 8.2, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, then the Indemnified Party Person shall promptly notify give written notification to the Indemnifying Party of such claim, specifying this Agreement. Such notification shall be given within 30 days after receipt by the nature Indemnified Person of notice of such claim Third Person Claim, and shall describe in reasonable detail (to the extent known by the Indemnified Person) the facts constituting the basis for such Third Person Claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) claimed Damages (the “Claim Notice”if available). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that no delay or failure on the part of the Indemnified party is hereby authorized prior Person in so notifying the Indemnifying Party shall relieve the Indemnifying Party of any liability or obligation hereunder except to the extent such delay or failure results in insufficient time being available to permit the Indemnifying Party to effectively defend against the Third Person Claim or otherwise prejudices the Indemnifying Party’s ability to defend against the Third Person Claim. Asset Purchase Agreement between Xxxxxxx Resources, Inc. and during Xxxxx Xxxxxxxx 17 Proprietary and Confidential Intended for Addressee Only (ii) The Indemnifying Party may, upon written notice to the Notice Period Indemnified Person, assume control of the defense of such Third Person Claim with counsel reasonably satisfactory to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event Indemnified Person; provided that (a) the Indemnifying Party notifies the Indemnified Person in writing within 30 days after the Indemnified Person has given notice of the Third Person Claim that the Indemnifying Party within will indemnify the Notice Period Indemnified Person from and against the Damages the Indemnified Person may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Person Claim (subject to the provisions of this Article VIII); (b) the ad damnum, if any, is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VIII; (c) the Indemnifying Party provides the Indemnified Person with evidence acceptable to the Indemnified Person that it does not dispute such liability and desires the Indemnifying Party will have the financial resources to defend against the Third Person Claim and fulfill its indemnification obligations hereunder; (d) the Third Person Claim does not involve criminal liability and seeks only money damages and not equitable relief against the Indemnified Person; (e) settlement of, or an adverse judgment with respect to, the Third Person Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person, and (f) the Indemnifying Party conducts the defense of the Third Person Claim actively and diligently. (iii) If the Indemnifying Party does not, or is not permitted under the terms of this Agreement to, so assume control of the defense of a Third Person Claim, the Indemnified Person shall control such claim defense. (iv) The Non-controlling Party may participate in such defense at its own expense. The Controlling Party shall keep the Non-controlling Party advised of the status and defense of such Third Person Claim and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Third Person Claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, theninvoice, except as hereinafter providedbilling or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third Person Claim. The reasonable fees and expenses of counsel to the Indemnified Person with respect to a Third Person Claim shall be considered Damages for purposes of this Agreement if: (x) the Indemnified Person controls the defense of such Third Person Claim under the terms of this Section 8.3; or (y) the Indemnifying Party assumes control of such defense and the Indemnified Person reasonably concludes that the Indemnifying Party and the Indemnified Person have conflicting interests or different defenses available with respect to such Third Person Claim. (v) The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Person Claim without the prior written consent of the Indemnified Person, which shall not be unreasonably withheld or delayed; provided that the consent of the Indemnified Person shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable under such settlement or judgment and such settlement or judgment includes a complete release of the Indemnified Person from further liability and has no other adverse effect on the Indemnified Person. The Indemnified Person shall send the Indemnifying Party at least ten days prior notice of any settlement of the Third Person Claim that it proposes to enter into, and if the Indemnifying Party has not yet assumed the defense of the Third Person Claim that is capable of being assumed under the terms of Section 8.3(a)(ii), the Indemnifying Party shall have may admit in writing its obligation to provide indemnity as described in Section 8.3(a)(ii)(a), assume the right to defend such claim or demand by appropriate proceedingsdefense, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and reject the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or proposed settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect has assumed the defense of the Third Person Claim or the initial 30-day period in which the Indemnifying Party may elect to such claim, or elects assume the defense has not to defend against such claim, whether by not giving timely notice as provided above or otherwiseyet run, the Indemnified Party Person shall have not agree to any settlement of, or the right but not the obligation to defend against such claim, and the amount entry of any judgment arising from, any such claim, or if Third Person Claim without the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability prior written consent of the Indemnifying Party hereunder (subjectParty, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)which shall not be unreasonably withheld or delayed.

Third Person Claims. In (i) Promptly after any party hereto (herein the event that ------------------- "Indemnified Party") has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to Section 11.1 or 11.2 hereof (herein the "Indemnifying Party"), give the 41 Indemnifying Party written notice of such claim, specifying Third Party Claim describing in reasonable detail the nature of such claim and Third Party Claim, a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the amount or of damages attributable to the estimated amount thereof Third Party Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party's request for indemnification under this Agreement; provided, however, that the failure of the Indemnified Party to give -------- ------- timely notice hereunder shall relieve the Indemnifying Party of its indemnification obligations under this Agreement to the extent, but only to the extent that, such failure materially prejudices the Indemnifying Party's ability to defend such claim. Within fifteen (15) days after receipt of such notice (the “Claim Notice”"Election Period"). The , the Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (ia) whether or not it the Indemnifying Party disputes its potential liability to the Indemnified Party hereunder under this Section 11 with respect to such claim; that Third Party Claim and (b) if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to that Third Party Claim, whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against that Third Party Claim. (ii) if it If the Indemnifying Party does not dispute such liabilityits potential liability to the Indemnified Party and notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim through counsel of its own choosing which is consented to by the Indemnified Party (which consent shall not be unreasonably delayed or withheld), whether or not it desiresthen the Indemnifying Party shall have the right to defend, at its sole cost and expense, that Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to defend a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 11.3(ii) and the Indemnified Party against such claimwill furnish the Indemnifying Party with all information in its possession with respect to that Third Party Claim and otherwise cooperate with the Indemnifying Party in the defense of that Third Party Claim; provided, however, that the Indemnifying -------- ------- Party shall not enter into any settlement with respect to any Third Party Claim that purports to limit the activities of, or otherwise restrict in any way, any Indemnified party Party or any affiliate of any Indemnified Party without the prior consent of that Indemnified Party (which consent may be withheld in the sole discretion of that Indemnified Party). The Indemnified Party is hereby authorized prior authorized, at the sole cost and expense of the Indemnifying Party, to and file, during the Notice Period to file Election Period, any motion, answer or other pleading, submission or document which it pleadings that the Indemnified Party shall deem necessary or appropriate to protect its interestsinterests or those of the Indemnifying Party. In The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the event Indemnifying Party pursuant to this Section 11.3(ii) and will bear its own costs and expenses with respect to that participation; provided, however, -------- ------- that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party (the "Separate Defenses"), then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, and, on its written notification of that employment, the Indemnifying Party shall not have the right to assume or continue the defense of such action on behalf of the Indemnified Party with respect to the Separate Defenses. (iii) If the Indemnifying Party (a) within the Election Period (1) disputes its potential liability to the Indemnified Party under this Section 11, (2) elects not to defend the Indemnified Party pursuant to Section 11.3(ii) or (3) fails to notify the Indemnified Party that the Indemnifying Party notifies elects to defend the Indemnified Party within the Notice Period that it does not dispute such liability and desires pursuant to Section 11.3(ii) or (b) elects to defend against such claim the Indemnified Party pursuant to Section 11.3(ii) but fails diligently and promptly to prosecute or demandsettle the Third Party Claim, then, except as hereinafter provided, then the Indemnifying Indemnified Party shall have the right to defend such claim or demand defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly settled or and vigorously prosecuted by the Indemnified Party to a final conclusionconclusion or settled, but any settlement shall require the consent of the Indemnifying Party, which consent shall not be unreasonably delayed or withheld. The Indemnified Party shall have full control of such defense and proceedings. Notwithstanding the foregoing, if the Indemnifying Party has delivered a written notice to the Indemnified Party to the effect that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 11 and if such dispute is resolved in such a manner as favor of the Indemnifying Party, the Indemnifying Party shall not be required to avoid any risk bear the costs and expenses of the Indemnified Party becoming subject Party's defense pursuant to liability. If this Section 11.3 or of the Indemnifying Party's participation therein at the Indemnified Party's request. The Indemnifying Party desires to may participate in, but not control, any such defense or settlementsettlement controlled by the Indemnified Party pursuant to this Section 11.3(iii), it may do so at its own cost and expense. If the Indemnifying Party disputes shall bear its liability own costs and expenses with respect to such claimparticipation. (iv) The parties hereto will make appropriate adjustments for any Tax benefits, Tax detriments or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and insurance proceeds in determining the amount of any such claimindemnification obligation under this Section 11, or if the same be contested by the provided that an -------- Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively obligated to seek any payment pursuant to the terms of any insurance policy. All indemnification payments under this Section 11 shall be deemed adjustments to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)consideration provided for herein.

Third Person Claims. In (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the event that any claim for which Indemnified Party (a party providing indemnification (the “Indemnifying PartyThird Person Claim”) would be liable to a party shall notify the Indemnitor in writing, and in reasonable detail, of the Third Person Claim within fifteen (15) Business Days (or any reasonably more promptly dependent upon the circumstances) after receipt by such Indemnified Party of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personwritten notice of such Third Person Claim. Thereafter, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof deliver to the extent then feasible Indemnitor, within ten (which estimate shall not be conclusive 10) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the final amount of Indemnitor relating to such claim) Third Person Claim (the a “Third Person Claim Notice”). The Indemnifying Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement upon which such claim is based and describe in reasonable detail (to the extent known) the facts giving rise to an alleged basis for the claim and the amount of the liability asserted against the Indemnitor by reason of such Third Person Claim; provided, however, that the failure or delay of the Indemnified Party to give notice to the Indemnitor as provided in this Section 11.4 shall not relieve the Indemnitor of its obligations hereunder except to the extent the Indemnitor shall have thirty been materially and actually prejudiced by such failure. The Indemnitor shall have fifteen (3015) Business Days (or such lesser number of days from its as set forth in the Third Person Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Third Person Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not that it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, desires to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. Third Person Claim. (b) In the event that the Indemnifying Party Indemnitor notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend the Indemnified Party against such claim or demand, then, except as hereinafter provideda Third Person Claim, the Indemnifying Party Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with such Third Person Claim; provided, however, that the Indemnified Party may participate in any such Proceeding with counsel of its choice and at its expense; provided further, however, that the Indemnitor shall not be entitled to assume or continue control of the defense of any Third Person Claim if (i) the Third Person Claim relates to or arises in connection with any criminal or regulatory Proceeding, (ii) based on the advice of outside legal counsel to the Indemnified Party, a conflict (including the availability of different or additional defenses) exists between the Indemnified Party and the Indemnitor in connection with such Third Person Claim or conduct of claim by the Indemnitor would compromise any legal privilege or similar doctrine with respect to the Indemnified Party or any of its Affiliates or (iii) the Third Person Claim primarily seeks (x) an injunction against the Indemnified Party or (y) where the Indemnified Party is a Buyer Indemnified Party, equitable relief requiring the taking of action or the refraining from taking actions by the Buyer. The Indemnified Party agrees to cooperate fully and in good faith with the Indemnitor in connection with the defense, negotiation or settlement of any Third Person Claim. To the extent the Indemnitor elects not to defend such claim or demand Third Person Claim by appropriate proceedingswritten notice to the Indemnified Party, the Indemnified Party may retain counsel at the expense of the Indemnitor, which proceedings counsel shall be promptly settled reasonably acceptable to the Indemnitor, and control the defense of such Proceeding; provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.4 to pay for only one firm of counsel for all Indemnified Parties in addition to any local counsel who may need to be retained. The Indemnitor shall not, without the prior written consent of the Indemnified Party, settle, compromise or prosecuted offer to settle or compromise any Third Person Claim on a final conclusion, in such a manner as to avoid any risk basis that would not include an unconditional release of the Indemnified Party becoming subject to liability. If and would (i) exceed the balance of the Indemnitor’s indemnity obligations hereunder if the Indemnified Party desires to participate inis a Seller Group Member, but not controlor exceed the Indemnity Escrow, if the Indemnified Party is a Buyer Indemnified Party, (ii) result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, (iii) result in a finding or admission of a violation of Requirements of Laws or violation of the rights of any Person by the Indemnified Party or any of its Affiliates or (iv) impose ongoing obligations on the Indemnified Party following the date of such defense settlement or settlement, it may do so at its own cost and expense. compromise. (c) If the Indemnifying Party disputes its liability with respect to such claim, or Indemnitor (i) elects not to defend the Indemnified Party against such claima Third Person Claim, whether by not giving the Indemnified Party timely notice as provided above of its desire to so defend or otherwiseotherwise or (ii) after assuming the defense of a Third Person Claim, fails to take reasonable steps necessary to defend diligently such Third Person Claim within ten (10) days after receiving written notice from the Indemnified Party to the effect that the Indemnitor has so failed, the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount of any such claim, or if the same be contested by the Indemnifying Party or by assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third Person Claim shall not be adversely affected by assuming the defense of such Third Person Claim. The Indemnified Party shall not settle a Third Person Claim seeking money damages without the consent of the Indemnitor, then which consent shall not be unreasonably withheld. (d) Subject to Section 11.4(e), the Indemnified Party and the Indemnitor shall reasonably cooperate in order to ensure the proper and adequate defense of a Third Person Claim, including by providing access to each other’s relevant business records and other documents and employees; it being understood that portion thereof the reasonable costs and expenses of the Indemnified Party relating thereto shall constitute Losses. (e) The Indemnified Party and the Indemnitor shall use reasonable best efforts to avoid production or other disclosure of confidential information (consistent with applicable Requirements of Laws), and to cause all communications among employees, counsel and others representing any party to a Third Person Claim to be made so as to which such defense is unsuccessfulpreserve any applicable attorney-client or work-product privileges. (f) To the extent of any inconsistency between this Section 11.4 and Section 8.1(c) (relating to Tax contests), the provisions of Section 8.1(c) shall be conclusively deemed control with respect to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Tax contests.

Third Person Claims. In the event that any If a claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personPerson is made against a Covered Party, the Indemnified and if such party intends to seek indemnity with respect thereto under this Article VII, such Covered Party shall promptly notify the Indemnifying Party in writing of such claimclaims, specifying the nature of setting forth such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”)claims in reasonable detail. The Indemnifying Party shall have thirty twenty (3020) days from its following receipt of the Claim Notice (the “Notice Period”) such notice to notify the Indemnified Party (i) whether or not it disputes its liability deliver to the Indemnified Covered Party hereunder a written acknowledgement that such claim is an indemnifiable claim under this Article VII, that it shall undertake, conduct and control (in accordance with the terms hereof), through counsel of their own choosing and at their own expense, the settlement or defense thereof, and the Covered Party shall cooperate with them in connection therewith; provided, that, the Covered Party may participate in such settlement or defense through counsel chosen by such Covered Party and paid at its own expense, provided further that, if in the reasonable opinion of counsel for Indemnifying Party, there is a reasonable likelihood of a conflict of interest between the Indemnifying Party and the Covered Party, the Indemnifying Party shall be responsible for reasonable fees and expenses of one counsel to such Covered Party in connection with such defense. The Covered Party shall not pay or settle any such claim without the consent of the Sellers’ Representative with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend claims where the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that Sellers are the Indemnifying Party notifies and Buyer where Buyer is the Indemnified Indemnifying Party. If the Indemnifying Party within the Notice Period that it does not dispute such liability and desires deliver to defend against the Covered Party a written acknowledgement that such claim or demand, then, except as hereinafter providedis an indemnifiable claim under this Article VII within such twenty (20) days, the Indemnifying Covered Party shall have the right to defend such claim undertake the defense, compromise or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk settlement of the Indemnified claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party becoming subject to liability. If shall not, except with the Indemnified Party desires to participate inconsent of the Covered Party, but enter into any settlement that is not control, any such defense or settlement, it may do so at its own cost and expense. If exclusively monetary paid entirely by the Indemnifying Party disputes its and does not include as an unconditional term thereof the giving by the person or persons asserting such claim to all Covered Parties of an unconditional release from all liability with respect to such claim, claim or elects not consent to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount entry of any such claimjudgment. Notwithstanding the foregoing, or if the same be contested by the Indemnifying Party shall not be entitled to control any claim relating to Taxes of Buyer or by its Subsidiaries, or the Indemnified PartyGroup Companies for any Tax period ending after the Closing Date and shall not be entitled to settle, then that portion thereof as to either administratively or after the commencement of litigation, any claim for Taxes which such defense is unsuccessful, shall be conclusively deemed to be a could adversely affect the liability of Buyer or its Subsidiaries, or the Indemnifying Party hereunder Group Companies for Taxes for any Tax period (subjector portion thereof) after the Closing Date, if it has timely disputed liability, to a determination that without the disputed liability is covered by this Article X)prior written consent of Buyer.

Third Person Claims. In 8.6.1. If the event that Claiming Party seeks indemnification under this Article VIII with respect to any claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party pending or any of its officers, directors, partners, employees, agents threatened action at law or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected suit in equity by a third personPerson against such Claiming Party (each such action being a “Third Person Claim”), the Indemnified Party shall promptly notify the 3063972 43 Indemnifying Party of such claimwill be entitled, specifying the nature of such claim and the amount or the estimated amount thereof if it so elects by written notice delivered to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”). The Indemnifying Claiming Party shall have no later than thirty (30) days from after receiving the Claim Notice, and such notice (a) includes the Indemnifying Party’s acknowledgment that as between the Indemnifying Party and the Claiming Party, the Indemnifying Party shall be responsible for all Losses associated with such Third Person Claim in accordance with the terms set forth in this Agreement and (b) provides reasonably satisfactory evidence of its receipt financial ability to satisfy in the aggregate all such indemnification and cost and expense reimbursement obligations (which evidence may include funds under the Indemnity Escrow Account but only to the extent such funds are not reserved for, or the subject of, any other claims, subject to Section 8.6.2, to conduct and control the defense, compromise or settlement of such Third Person Claim with counsel reasonably acceptable to the Claiming Party and at the expense of the Indemnifying Party. In any such case, the Claiming Party shall cooperate in connection therewith and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party in connection therewith; provided that the Claiming Party may participate, through counsel chosen by it, in the defense of any such Third Person Claim Notice (as to which the “Notice Period”) Indemnifying Party has so elected to notify conduct and control the Indemnified defense thereof, but the fees and expenses of such counsel shall be at the expense of the Claiming Party unless (i) whether the employment of such counsel at the Indemnifying Party’s expense shall have been specifically authorized in writing by the Indemnifying Party or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liabilitythe named parties to the Third Person Claim (including any impleaded parties) include both the Claiming Party and the Indemnifying Party, whether or not it desires, at its sole cost and expense, the Claiming Party reasonably determines that representation by counsel to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies of both the Indemnified Indemnifying Party within and such Claiming Party may present such counsel with a conflict of interest. Notwithstanding the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter providedforegoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Person Claim that involves claims for equitable or injunctive relief, any claim that would impose criminal liability, or any claim for damages exceeding the Indemnifying Party’s responsibility therefor under the terms hereof, and the Claiming Party shall have the right to defend such claim or demand by appropriate proceedingsdefend, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk at the expense of the Indemnified Indemnifying Party becoming subject (to liability. If the Indemnified Party desires to participate inextent such expenses constitute Losses validly claimed under Section 8.2 or Section 8.3, but not controlas applicable), any such Third Person Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Claiming Party for any period during which the Indemnifying Party has failed to assume the defense thereof (to the extent such fees and expenses constitute Losses validly claimed under Section 8.2 or settlementSection 8.3, it may do so at its own cost and expenseas applicable). If the Indemnifying Party disputes its does not expressly elect to assume the defense of such Third Person Claim within the time period and otherwise in accordance with the first sentence of this Section 8.6.1, the Claiming Party shall have the sole right to assume the defense of such Third Person Claim. 8.6.2. Neither the Indemnifying Party, on the one hand, nor the Claiming Party, on the other hand, shall admit liability to, or settle, compromise or discharge any Third Person Claim without the prior consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, if the Indemnifying Party assumes the defense of any Third Person Claim, the Indemnifying Party may admit any liability with respect to, or enter into any settlement or compromise or consent to the entry of any judgment with respect to such claimThird Person Claim if such settlement, 3063972 44 compromise or elects judgment (i) does not to defend against such claiminvolve a finding or admission of wrongdoing, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount of any such claim, or if the same be contested (ii) includes an unconditional written release by the Indemnifying Party applicable claimant or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability plaintiff of the Indemnifying Claiming Party hereunder from all liability in respect of such Third Person Claim and (subject, if it has timely disputed liability, to a determination that iii) imposes no equitable remedies on the disputed liability is covered by this Article X)Claiming Party.

Third Person Claims. 10.5.1 In the event that any claim order for which a party providing indemnification (the “Indemnifying Party”) would to be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to any indemnification hereunder (provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the “Indemnified Party”) is asserted against or sought to be collected , such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly after receipt by a such Indemnified Party of written notice of the third personPerson claim. Thereafter, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof deliver to the extent then feasible Indemnitor, within five (which estimate shall not be conclusive 5) calendar days after the Indemnified Party’s receipt thereof, copies of the final amount of such claimall notices and documents (including court papers) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify received by the Indemnified Party (i) whether or not it disputes its liability relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party hereunder must notify the Indemnitor with respect a copy of the complaint within five (5) calendar days after receipt thereof and shall deliver to the Indemnitor within five (5) calendar days after the receipt of such claim; complaint copies of notices and documents (iiincluding court papers) if it does not dispute received by the Indemnified Party relating to the third Person claim (or in each case such liabilityearlier time as may be necessary to enable the Indemnitor to respond to the court proceedings on a timely basis). 10.5.2 In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, whether or not it desiresthe Indemnitor shall have the sole and absolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. Such cooperation shall include the retention and the provision of records and information which is hereby authorized prior reasonably relevant to such third Person claim, and during making employees available in a mutually convenient basis to provide additional information and explanation of any material provided hereunder. To the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In extent the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, thenand the Indemnified Party defends against or otherwise deals with any such proceeding, except as hereinafter providedclaim or demand, the Indemnifying Indemnified Party shall have may retain counsel, at the right to defend expense of the Indemnitor, and control the defense of such claim or demand by appropriate proceedingsproceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding, which proceedings shall settlement obligates the other party to pay money, to perform obligations or to admit liability without the written consent of the other party, such consent not to be promptly settled unreasonably withheld or prosecuted to a final conclusion, in such a manner as to avoid any risk delayed; provided that the consent of the Indemnified Party becoming subject shall not be required if the Indemnitor agrees in writing to liabilitypay any amounts payable pursuant to such settlement and such settlement includes a full and conditional release of the Indemnified Party. If After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnifiable by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of any such claim, or if the same be contested by the Indemnifying Party or by sums so owing to the Indemnified Party, then that portion thereof as Party by wire transfer within thirty (30) calendar days after the date of such notice. 10.5.3 This Clause 10.5 shall not apply to which such defense is unsuccessful, shall be conclusively deemed any claim for indemnification relating to be a liability breach of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that Tax Warranties. The provisions of Clause 4 of the disputed liability is covered by this Article X)Tax Deed shall apply instead.

Third Person Claims. In (i) An Indemnified Party must notify the event that any Indemnitor in writing, and in reasonable detail, of a third Person claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to Indemnified Party is seeking indemnification hereunder (promptly after receipt by such Indemnified Party of written notice of the “third Person claim provided, however, that the failure of any Indemnified Party to give such notice as required by this Section 7.1(e) shall not affect such Indemnified Party”) ’s rights under this Article 7, except the extent such failure is asserted against or sought actually prejudicial to be collected by a third personthe rights and obligations of the Indemnitor. Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor, within five (5) calendar days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnifying Party Indemnitor with a copy of the complaint within five (5) calendar days after receipt thereof and shall deliver to the Indemnitor within five (5) calendar days after the receipt of such claimcomplaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such earlier time as may be necessary to enable the Indemnitor to respond to the court Proceedings on a timely basis); provided, specifying however, that the nature failure of any Indemnified Party to give such claim and the amount or the estimated amount thereof notice promptly as required by this Section 7.1(e) shall not affect such Indemnified Party’s rights under this Article 7, except to the extent then feasible (which estimate shall not be conclusive such failure is actually prejudicial to the rights and obligations of the final amount of such claimIndemnitor. (ii) (In the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt event of the Claim Notice (the “Notice Period”) to notify initiation of any legal Proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice that Indemnitor selects using the same standard of care and processes that it uses for selecting counsel in any other similar matters and to control, defend the Indemnified Party against such claimagainst, negotiate, settle or otherwise deal with any Proceeding which relates to any Indemnifiable Damages; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such Proceeding with counsel of its choice and at its expense. If the Indemnitor elects to assume control of the defense of a third Person claim, and during the Notice Period to file diligently pursues such defense, any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies fees and expenses of legal counsel employed by the Indemnified Party within with respect to such third Person claim shall be considered Indemnifiable Damages for which the Notice Period Indemnified Party may be entitled to indemnification under this Article 7 only if the named parties in such third Person claim include both the Indemnitor and the Indemnified Party and the Indemnified Party has determined in good faith upon written advice of counsel that it does a conflict of interest exists, in which case the fees and expenses of its counsel, together with appropriate local counsel, shall be paid by the Indemnitor (provided that in such situation, all of the Indemnified Parties shall not dispute be entitled to employ more than one law firm, other than appropriate local counsel, each at Indemnitor’s expense). The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such liability legal Proceeding. Such cooperation shall include the retention and desires the provision of records and information which is reasonably relevant to defend against such claim or demandthird Person claim, then, except as hereinafter provided, and making employees available in a mutually convenient basis to provide additional information and explanation of any material provided hereunder. To the Indemnifying Party shall have extent the right Indemnitor elects not to defend such claim Proceeding, or demand by appropriate proceedingsdoes not notify the Indemnified Party in writing of its election to assume the defense thereof, and the Indemnified Party defends against or otherwise deals with any such Proceeding, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such Proceeding until and unless Indemnitor subsequently gives notice of its election to defend; provided that the Indemnified Party shall be entitled to indemnification for counsel fees and expenses incurred during the initial twenty (20) days after notice of such Proceeding is given to the Indemnitor only to the extent that the Indemnified Party in good faith believed that incurrence of such fees and expenses was necessary. Neither the Indemnitor nor the Indemnified Party may settle any such Proceeding, which proceedings shall settlement obligates the other party to pay money, to perform obligations or to admit liability without the written consent of the other party, such consent not to be promptly settled unreasonably withheld or prosecuted to a final conclusion, in such a manner as to avoid any risk delayed; provided that the consent of the Indemnified Party becoming subject to liability. If shall not be required if (i) there is no finding or admission of any violation of any Requirements of Law or any violation of the rights of any Person; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnitor; and (iii) the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its shall have no liability with respect to such claimany compromise or settlement effected without its consent. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or elects not a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to defend against such claim, whether each separate matter alleged to be indemnifiable by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of any such claim, or if the same be contested by the Indemnifying Party or by sums so owing to the Indemnified Party, then that portion thereof as to which Party by wire transfer within five (5) Business Days after the date of such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)notice.

Third Person Claims. (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within ten (10) business days after receipt by such Indemnified Party of written notice of the third Person claim (and the Indemnified Party’s being aware of the likelihood of an indemnification claim hereunder). The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) In the event that any legal proceeding shall be threatened or instituted or any claim for or demand shall be asserted by any Person in respect of which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) payment is asserted against or sought reasonably expected to be collected sought by a third personone party hereto from the other party under the provisions of this ARTICLE XI, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of any such claimclaim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, specifying warranties or covenants contained in this Agreement shall contain a reference to the nature provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (liability asserted against the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt Indemnitor by reason of the Claim Notice (claim. In the “Notice Period”) to notify event of the initiation of any legal proceeding against the Indemnified Party (iby a third Person in respect of which payment is reasonably expected to be sought by one party hereto from the other party under the provisions of this ARTICLE XI, the Indemnitor shall have 30 days from receipt of notice pursuant to Section 11.5(a) whether or not it disputes to give notice to assume the defense thereof; provided, that as a condition to the assumption, the Indemnitor must acknowledge in writing its liability obligations to indemnify the Indemnified Party in the event that such third Person claim is adversely determined and provide evidence reasonably satisfactory to the Indemnified Party hereunder with respect that the Indemnitor has sufficient resources to such claim; and satisfy its indemnification obligation (ii) if it does not dispute such liabilitywhich evidence may consist solely of the most recent financial statements of Seller Parent available on the SEC website). If notice to the effect set forth in the immediately preceding sentence is given by the Indemnitor, whether or not it desires, at its sole cost and expense, the Indemnitor shall have the right to defend assume the defense of the Indemnified Party against such claimthe third Person claim with counsel of its choice and, subject to the terms of this Section 11.5(b), to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim or demand which relates to any loss, liability or damage indemnified against hereunder; provided, however, that the Indemnified Party may participate in any such proceeding with counsel of its choice and at its expense, except if the Indemnified Party concludes based on the advice of outside counsel that a conflict of interest exists between the Indemnitor and the Indemnified Party because the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with or additional to one or more of those that may be available to the Indemnitor in respect of such third Person claim, in which case the Indemnitor shall be liable for the fees and expenses of one firm of counsel for the Indemnified Party. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand and to make available to the other party all witnesses, pertinent records, materials and information in such party’s possession or under such party’s control relating thereto as is hereby authorized prior reasonably required by the other party. To the extent the Indemnitor (A) elects not to and during defend such proceeding, claim or demand (including by failure to deliver the Notice Period acknowledgement of its obligation to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In indemnify the Indemnified Party in the event that the Indemnifying Party notifies such third Person claim is adversely determined or to provide evidence reasonably satisfactory to the Indemnified Party within that the Notice Period that it does not dispute Indemnitor has sufficient resources to satisfy its indemnification obligation (which evidence may consist solely of the most recent financial statements of Seller Parent available on the SEC website)) or (B) fails to contest in good faith the third Person claim and the Indemnified Party defends against or otherwise deals with any such liability and desires to defend against such proceeding, claim or demand, thenthe Indemnified Party may retain counsel, except as hereinafter providedat the expense of the Indemnitor, and control the defense of such proceeding. Notwithstanding anything to the contrary in this Section 11.5, the Indemnifying Indemnified Party (and not the Indemnitor) shall have the exclusive right to assume the defense and control of any third Person claim if (i) the Indemnified Party in good faith determines that the nature of the third Person claim is such that it would reasonably be expected to involve criminal liability being imposed on any Indemnified Party or its Affiliates (but not the Indemnitor or any of its Affiliates), (ii) such claim seeks as the sole remedy an injunction or other equitable relief against any Indemnified Party or (iii) if it is reasonably likely that the Losses and Expenses arising from such claim (if determined in any manner) will exceed an amount equal to two times the amount the Indemnified Party will be entitled to recover from the Indemnitor as a result of the limitations set forth in this ARTICLE XI. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other party to pay money, to perform obligations, to agree to any restrictions on its business or operations that would reasonably be expected to result in material harm to the affected Person or to admit liability without the consent of the other party. If the Indemnified Party shall refuse to consent to the settlement of any third Person claim, so long as only money damages payable by the Indemnitor are involved and there is no admission of liability or wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such third Person claim shall not exceed the amount for which the third Person claim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with the proposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within thirty (30) days after the date of such notice. Notwithstanding anything in this Section 11.5(b) to the contrary, Seller Parent shall have the right to control and defend any Specified Litigation and to settle such claim Specified Litigation without the consent of Buyer if such settlement is solely for monetary damages. In the event a settlement of a Specified Litigation involves relief other than monetary damages, including any injunctive or demand by appropriate proceedingsequitable relief or any other non-monetary liability or obligation upon the Business or Buyer or its Affiliates, which proceedings Buyer’s consent shall be promptly settled required, such consent not to be unreasonably withheld, conditioned or prosecuted to a final conclusion, in such a manner as to avoid any risk delayed (taking into account the ongoing operations of the Indemnified Party becoming subject Business as it then exists). (c) To the extent of any inconsistency between this Section 11.5 and Section 8.2(c) (relating to liability. If Tax contests), the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability provisions of Section 8.2(c) shall control with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Tax contests.

Third Person Claims. (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within five business days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within 10 business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 10.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) In the event that any legal proceeding shall be threatened or instituted or any claim for or demand shall be asserted by any Person in respect of which a payment may be sought by one party providing indemnification (hereto from the “Indemnifying Party”) would be liable to a other party or any under the provisions of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personthis Article X, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of any such claimclaim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, specifying warranties or covenants contained in this Agreement shall contain a reference to the nature provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (liability asserted against the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt Indemnitor by reason of the Claim Notice (claim. In the “Notice Period”) to notify event of the initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to and during cooperate fully with each other in connection with the Notice Period to file defense, negotiation or settlement of any motionsuch legal proceeding, answer claim or other pleading, submission or document which it shall deem necessary or appropriate to protect its interestsdemand. In To the event that extent the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and the Indemnified Party becoming subject to liability. If defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party desires to participate inmay retain counsel, but not controlat the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such defense proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld; provided, that, if the Indemnitor wishes to settle any such proceeding and the Indemnified Party does not consent to such settlement, it may do so the Indemnitor shall not have any liability or obligation in excess of the proposed settlement amount. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of any such claim, or if the same be contested by the Indemnifying Party or by sums so owing to the Indemnified PartyParty by wire transfer, then that portion thereof as to which certified or bank cashier's check within 30 days after the date of such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)notice.

Third Person Claims. In (a) Promptly after receipt by an Indemnified Party of notice of the event that any claim for which assertion of a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officersThird Person Claim against it, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, the such Indemnified Party shall promptly notify give notice to the Indemnifying Party Indemnitor of the assertion of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimThird Person Claim; provided, however, that the failure to notify the Indemnitor will not relieve the Indemnitor of any liability that it may have to any Indemnified party Party. (b) If an Indemnified Party gives notice to the Indemnitor pursuant to this Section of the assertion of a Third Person Claim, the Indemnitor shall be entitled to participate in the defense of such Third Person Claim and, to the extent that it wishes (unless (i) the Indemnitor is hereby authorized prior to also a Person against whom the Third Person Claim is made and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within determines in good faith that joint representation would be inappropriate or (ii) the Notice Period that it does not dispute such liability Indemnitor fails to provide reasonable assurance to the Indemnified Party of its commitment and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right financial capacity to defend such claim Third Person Claim and provide indemnification with respect to such Third Person Claim), to assume the defense of such Third Person Claim with counsel satisfactory to the Indemnified Party (except to the extent the Indemnified Party has other issues involved in the same dispute or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk the extent resolution of the Third Person Claim could affect liability of the Indemnified Party becoming subject in other periods or in respect of other issues). After notice from the Indemnitor to liability. If the Indemnified Party desires of its election to participate inassume the defense of such Third Person Claim, but not controland conditioned upon continuing satisfaction of conditions (i) and (ii) of this Section, the Indemnitor shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Section for any such defense fees of other counsel or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability any other expenses with respect to the defense of such claimThird Person Claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such Third Person Claim. No compromise or elects settlement of such Third Person Claims may be effected by the Indemnitor without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of Requirement of Law or any violation of the rights of any Person; (B) the sole relief provided is monetary damages that are paid in full by the Indemnitor; (C) the settlement could not give rise to defend against such claim, whether by not giving timely notice as provided above or otherwise, any other liability of the Indemnified Party; and (D) the Indemnified Party shall have no liability or be subject to any compromise or restriction with respect to any such compromise or settlement. If notice is given to an Indemnitor of the right but not the obligation to defend against such claim, assertion of any Third Person Claim and the amount Indemnitor does not, within ten (10) Business Days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such Third Person Claim, the Indemnitor will be bound by any determination made in such claim, Third Person Claim or if the same be contested by the Indemnifying Party any compromise or settlement effected by the Indemnified Party. (c) Notwithstanding the provisions of Section 13.6 hereof, then each Seller hereby consents to the nonexclusive jurisdiction of any court in which a proceeding in respect of a Third Person Claim is brought against any Buyer Group Member for purposes of any claim that portion thereof any Buyer Group Member may have under this Agreement with respect to such proceeding or the matters alleged therein and agree that process may be served on any Seller with respect to such a claim anywhere in the world. (d) With respect to any Third Person Claim subject to indemnification under this Section: (i) both the Indemnified Party and the Indemnitor, as to which such defense is unsuccessfulthe case may be, shall be conclusively deemed to be a liability keep the other Person fully informed of the Indemnifying Party hereunder status of such Third Person Claim and any related suit, claim, proceeding, demand, order, investigation or request or demand for information at all stages thereof where such Person is not represented by its own counsel; and (subject, if it has timely disputed liability, ii) the parties agree to a determination that render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the disputed liability is covered by this Article X)proper and adequate defense of any Third Person Claim.

Third Person Claims. In the event that (a) If a claim or demand is made against an Indemnified Party, or an Indemnified Party shall otherwise learn of an assertion, by any claim for which Person who is not a party providing to this Agreement (or an Affiliate thereof) as to which an Indemnitor is reasonably likely to be obligated to provide indemnification pursuant to this Agreement (a “Third Party Claim”), such Indemnified Party will notify the “Indemnifying Indemnitor in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give such notification will not affect the indemnification provided hereunder except to the extent the Indemnitor shall have been actually prejudiced as a result of such failure. Thereafter, the Indemnified Party will deliver to the Indemnitor, promptly after the Indemnified Party”’s receipt thereof, copies of all material notices and documents (including court papers) would received or transmitted by or on behalf of the Indemnified Party relating to the Third Party Claim. (b) If a Third Party Claim is made against an Indemnified Party, the Indemnitor will be entitled to participate in or to assume the defense thereof (in either case, at the expense of the Indemnitor) with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnified Party. Should the Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnitor will not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, that if in the Indemnified Party’s reasonable judgment a party conflict of interest exists in respect of such claim, such Indemnified Party will have the right to employ separate counsel reasonably satisfactory to the Indemnitor to represent such Indemnified Party and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel for all Indemnified Parties similarly situated) shall be paid by such Indemnitor. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor, it being understood that the Indemnitor will control such defense. If the Indemnitor assumes the defense of any Third Party Claim, the Indemnitor will promptly supply to the Indemnified Party copies of all material correspondence and documents relating to or any in connection with such Third Party Claim and keep the Indemnified Party informed of its all material developments relating to or in connection with such Third Party Claim. If the Indemnitor chooses to assume the defense of a Third Party Claim, the parties hereto will cooperate in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnitor), which cooperation shall include the retention in accordance with this Agreement and (upon the Indemnitor’s request) the provision to the Indemnitor of records and information that are reasonably relevant to such Third Party Claim, and making employees, officers, directors, partnersand, employeesto the extent practicable, agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (c) No Indemnitor will consent to any settlement, compromise or representatives entitled discharge (including the consent to indemnification hereunder (entry of any judgment) of any Third Party Claim without the “Indemnified Party”) is asserted against ’s prior written consent (which consent will not be unreasonably withheld, delayed or sought to be collected by a third personconditioned); provided, that if the Indemnitor assumes the defense of any Third Party Claim, the Indemnified Party shall promptly notify the Indemnifying Party will agree to any settlement, compromise or discharge of such claim, specifying Third Party Claim that the nature of such claim Indemnitor may recommend and that by its terms obligates the amount or Indemnitor to pay the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final full amount of Indemnifiable Losses in connection with such claim) (the “Third Party Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify and unconditionally and irrevocably releases the Indemnified Party (i) whether or not it disputes and its liability to the Indemnified Affiliates completely from all Liability in connection with such Third Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimClaim; provided, however, that the Indemnified party is hereby authorized prior Party may refuse to and during the Notice Period agree to file any motionsuch settlement, answer compromise or discharge that (i) provides for injunctive or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies nonmonetary relief affecting the Indemnified Party within or any of its Affiliates, (ii) includes the Notice Period that it does not dispute such liability and desires to defend against such claim admission of guilt or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk responsibility of the Indemnified Party becoming subject to liability. If or any of its Affiliates or (iii) in the reasonable opinion of the Indemnified Party, would otherwise materially adversely affect the Indemnified Party desires to participate in, but or any of its Affiliates. Whether or not control, any such the Indemnitor shall have assumed the defense or settlement, it may do so at its own cost and expense. If the Indemnifying of a Third Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwiseClaim, the Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnitor’s prior written consent. (d) In the event of payment in full by an Indemnitor to any Indemnified Party in connection with any Third Party Claim, such Indemnitor will be subrogated to and shall stand in the place of such Indemnified Party as to any events or circumstances in respect of which such Indemnified Party may have the any right but not the obligation or claim relating to defend such Third Party Claim against any claimant or plaintiff asserting such claimThird Party Claim or against any other Person. Such Indemnified Party will cooperate with such Indemnitor in a reasonable manner, and at the amount cost and expense of such Indemnitor, in prosecuting any such subrogated right or claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X).

Third Person Claims. In Promptly after any party hereto (hereinafter ------------------- the event that "Indemnified Party") has received notice of or has knowledge of any claim for which by ----------------- a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”) would be liable to a party commencement of ------------ any action or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected proceeding by a third personThird Person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement, the Indemnified Party shall promptly notify give to the party obligated to provide indemnification pursuant to Section 9.1 or Section 9.2 hereof (hereinafter the "Indemnifying Party of such claim, specifying the nature Party") written ----------- ----------- ------------------ notice of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount commencement of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether action or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimproceeding; provided, -------- however, that the Indemnified party is hereby authorized prior Party's failure to timely provide such notice ------- shall not affect its right to indemnification hereunder unless, and during only to the Notice Period extent that, such failure materially prejudices the Indemnifying Party's ability to file any motion, answer defend such claim. Such notice shall state the nature and the basis of such claim and a reasonable estimate of the amount thereof or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event a statement that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against amount of such claim or demand, then, except as hereinafter provided, the cannot be reasonably estimated. The Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedingsand settle, which proceedings shall be promptly settled or prosecuted at its own expense and with counsel reasonably satisfactory to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not controlParty, any such defense or settlement, it may do matter so at its own cost long as the Indemnifying Party pursues the same diligently and expensein good faith. If the Indemnifying Party disputes undertakes to defend or settle, it shall promptly notify the Indemnified Party of its intention to do so. The Indemnified Party shall reasonably cooperate with the Indemnifying Party and its counsel in the defense thereof and in settlement thereof. The Indemnified Party shall furnish the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party's possession or control. After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnifying Party diligently pursues such defense in good faith, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability. The Indemnifying Party shall not settle any such Third Person claim without the consent of the Indemnified Party unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, the Indemnified Party. Subject to the preceding sentence, if the Indemnifying Party desires to accept a final and complete settlement of any such Third Person claim and the Indemnified Party refuses to consent to such settlement, then the Indemnifying Party's liability under this Section with respect to such claim, or elects not Third Person claim shall be limited to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount of any such claim, or if the same be contested so offered in settlement by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)said Third Person.

Third Person Claims. In (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the event that Indemnified Party (a “Third Person Claim”) shall notify the Indemnitor in writing, and in reasonable detail, of the Third Person Claim within a reasonable period after receipt by such Indemnified Party of written notice of the Third Person Claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within a reasonable period after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the Third Person Claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Person Claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Person Claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been prejudiced by such failure. (b) If any claim for or demand shall be asserted by any Person in respect of which a payment may be sought by one party providing indemnification (hereto from the “Indemnifying Party”) would be liable to a other party or any under the provisions of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personthis Article XI, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of such claim, specifying the nature of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall refer to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based and describe in reasonable detail the facts giving rise to an alleged basis for the claim and, if known and reasonably assessable, the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (liability asserted against the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt Indemnitor by reason of the Claim Notice (claim. In the “Notice Period”) to notify event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any Loss indemnified against hereunder; provided, however, that notwithstanding any such election by the Indemnitor, the Indemnified Party may participate in any such proceeding at any time, and may employ separate counsel of its choice and at its expense, except that the Indemnitor shall bear the reasonable fees, costs and expenses of any such separate counsel if (i) whether joint defense would involve a conflict of interest under applicable professional standards or not it disputes its liability to (ii) the Indemnitor shall have authorized in writing the Indemnified Party hereunder to employ separate counsel at the Indemnitor’s expense. Each of the parties hereto agrees to cooperate fully with respect the other party in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand and to make available to the other party all witnesses, pertinent records, materials and information in such claim; and (ii) if it does party’s possession or under such party’s control relating thereto as is reasonably required by the other party. To the extent the Indemnitor elects not dispute such liability, whether or not it desires, at its sole cost and expense, to defend such proceeding, claim or demand, and the Indemnified Party defends against or otherwise deals with any such claimproceeding, claim or demand, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such proceeding; provided, however, that the Indemnitor shall be obligated pursuant to this Section 11.5 to pay for only one firm of counsel for all Indemnified party is hereby authorized prior to and during Parties. Neither the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies Indemnitor nor the Indemnified Party within may settle any such proceeding which settlement obligates the Notice Period that it does not dispute such other party to pay money, to perform obligations or to admit liability and desires to defend against such claim or demand, then, except as hereinafter provided, without the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk written consent of the Indemnified Party becoming subject other party, such consent not to liabilitybe unreasonably withheld. If the Indemnified Party desires shall refuse to participate inconsent to the settlement of any Third Person Claim, but not control, any such defense so long as only money damages are involved and there is a full release of liability or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability wrongdoing with respect to the Indemnified Party, the liability of the Indemnitor in respect of such claimThird Person Claim shall not exceed the amount for which the Third Person Claim could have been settled plus the amount of expenses incurred by the Indemnified Party prior to the time of and in connection with the proposed settlement to which it is entitled to indemnification. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or elects not a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to defend against such claim, whether each separate matter alleged to be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier’s check within 30 days after the date of such notice. (c) To the extent of any such claiminconsistency between this Section 11.5 and Section 8.1(c) (relating to Tax contests), or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as provisions of Section 8.1(c) shall control with respect to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Tax contests.

Third Person Claims. (a) In order for a Seller Indemnified Party or a Parent Group Member (the event that “Indemnified Party”) to be entitled to any claim indemnification provided for which under Section 8.1 or 8.2 in respect of, arising out of or involving a Claim made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party must notify the party providing with the indemnification obligation (the “Indemnifying Party”) would be liable to a party or any in writing (and in reasonable detail) of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected Third Party Claim promptly following receipt by a third person, the such Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive notice of the final amount of such claim) (the “Claim Notice”). The Indemnifying Third Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claimClaim; provided, however, that failure to give such notification shall not affect the Indemnified party is hereby authorized prior indemnification provided hereunder except to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that extent the Indemnifying Party notifies shall have been actually and materially prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within five (5) business days’ time after the Notice Period Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim provided, however, that it does failure to give such copies or notification shall not dispute affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such liability and desires to defend failure. (b) If a Third Party Claim is made against such claim or demand, then, except as hereinafter providedan Indemnified Party, the Indemnifying Party shall have be entitled to participate in the right defense thereof and, if it so chooses, to defend assume the defense thereof with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not, as long as the Indemnifying Party diligently conducts such claim or demand by appropriate proceedingsdefense, which proceedings shall be promptly settled or prosecuted liable to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If for any legal expenses subsequently incurred by the Indemnified Party desires in connection with the defense thereof; provided, however, that if there exists or is reasonably likely to participate inexist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnified Party and the Indemnifying Party under applicable standards of professional conduct based upon the written advice of counsel, but not control, any such defense or settlement, it may do so at then the Indemnified Party shall be entitled to retain its own cost and expensecounsel, as well as local counsel in each jurisdiction for which the Indemnified Party reasonably determines such local counsel is required, at the expense of the Indemnifying Party. If the Indemnifying Party disputes its liability with respect to assumes such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwisedefense, the Indemnified Party shall have the right but to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the obligation defense thereof. If the Indemnifying Party chooses to defend against or prosecute a Third Party Claim, all the Indemnified Parties shall reasonably cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such claimThird Party Claim, and the amount making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnified Party shall be reimbursed for all reasonable out-of-pocket costs incurred in the course of such claimassistance. (c) If the Indemnifying Party assumes the defense of a Third Party Claim, (i) no compromise or if the same settlement of such Third Party Claim may be contested effected by the Indemnifying Party without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed, unless (A) there is no finding or admission of any violation of any Requirement of Law or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; (ii) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its prior written consent when such consent is required hereunder; and (iii) no compromise or settlement of such Third Party Claim may be effected by the Indemnified Party without the Indemnifying Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. If a Claim Notice is given to an Indemnifying Party of the commencement of any Third Party Claim and the Indemnifying Party does not, within 20 days after the Indemnified Party’s Claim Notice is given, give written notice to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party will be deemed to have waived the right to assume such defense; provided, however, that the Indemnifying Party shall not be precluded from otherwise participating in such Third Party Claim as permitted by this Section 8.5(c). Notwithstanding the foregoing, if a Parent Group Member is an Indemnified Party, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if (i) the Third Party Claim seeks an order, injunction or other equitable relief against the Indemnified Party, then (ii) the Third Party Claim could reasonably be expected to materially affect the business or operations of Parent, the Company or their Affiliates or (iii) the Indemnified Party determines in good faith that portion thereof as to which it could have greater monetary liability in respect of such defense is unsuccessful, shall be conclusively deemed to be a liability of Third Party Claim than the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that based upon the disputed liability is covered by limitations contained in this Article X)VIII.

Third Person Claims. (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within five business days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within 10 business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within 10 business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. The failure to give notice as provided in this Section 11.5 shall not relieve the Indemnitor of its obligations hereunder except to the extent it shall have been materially prejudiced by such failure. (b) In the event that any legal proceeding shall be threatened or instituted or any claim for or demand shall be asserted by any Person in respect of which a payment may be sought by one party providing indemnification (hereto from the “Indemnifying Party”) would be liable to a other party or any under the provisions of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personthis Article XI, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of such claim, specifying the nature of any such claim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, warranties or covenants contained in this Agreement shall contain a reference to the provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and (if then known) the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (liability asserted against the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt Indemnitor by reason of the Claim Notice (claim. In the “Notice Period”) to notify event of the initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not to defend such proceeding, claim or demand (or fails to assume the defense of such proceeding, claim or demand within a reasonable time period), and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute defends against or otherwise deals with any such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liabilitymay retain counsel of its choice, at the expense of the Indemnitor, and control the defense of such proceeding. If Neither the Indemnitor nor the Indemnified Party desires to participate in, but not control, may settle any such defense proceeding which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld; provided that if the Indemnitor wishes to settle any such proceeding, the proposed settlement involves only the payment of money and the Indemnified Party does not consent to such settlement, it may do so the Indemnitor shall not have any liability or obligation in excess of the proposed settlement amount plus all Expenses incurred on or prior to the date that the written consent is requested by the Indemnified Party. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of any such claim, or if the same be contested by the Indemnifying Party or by sums so owing to the Indemnified PartyParty by wire transfer, then that portion thereof as to which certified or bank cashier's check within 10 business days after the date of such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)notice.

Third Person Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the Indemnified Party, such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within 10 days after receipt by such Indemnified Party of written notice of the third Person claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor, within five business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitor relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, it is understood and agreed that any failure by the Indemnified Party to comply with any time limit or requirement with respect to notice set forth in this Section 11.4(a) or in Section 11.4(b) shall not affect such Indemnified Party's right to indemnification hereunder, except to the extent such failure impairs the Indemnitor. (b) In the event that any legal proceeding shall be threatened or instituted or any claim for which a party providing indemnification (or demand shall be asserted by any Person, other than the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or , in respect of which payment may be sought to be collected by a third personone party hereto from the other party under the provisions of this Article XI, the Indemnified Party shall promptly notify cause written notice of the Indemnifying Party assertion of any such claimclaim of which it has knowledge which is covered by this indemnity to be forwarded to the Indemnitor. Any notice of a claim by reason of any of the representations, specifying warranties or covenants contained in this Agreement shall contain a reference to the nature provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (liability asserted against the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt Indemnitor by reason of the Claim Notice (claim. In the “Notice Period”) to notify event of the initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to and during cooperate fully with each other in connection with the Notice Period to file defense, negotiation or settlement of any motionsuch legal proceeding, answer claim or other pleading, submission or document which it shall deem necessary or appropriate to protect its interestsdemand. In To the event that extent the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, thenand the Indemnified Party defends against or otherwise deals with any such proceeding, except as hereinafter providedclaim or demand, the Indemnifying Indemnified Party shall have may retain counsel, at the right to defend expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding, claim or demand which settlement obligates the other party to pay money, to perform obligations or to admit liability without the consent of the other party, such consent not to be unreasonably withheld. Without the consent of the Indemnitor, no Indemnified Party may settle any such proceeding, claim or demand if such settlement involves the provision by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If of future services or the relinquishment by the Indemnified Party desires of any right or claim. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to participate inappeal therefrom has expired, but not controlor a settlement shall have been consummated, any such defense or settlement, it may do so the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owning to the Indemnified Party by wire transfer, certified or bank cashier's check within 30 days after the date of such notice. (c) To the extent of any such claiminconsistency between this Section 11.4 and Section 8.2(c) (relating to tax contests), or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, provisions of Section 8.2(c) shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)control.

Third Person Claims. (a) In the event that any claim order for which a party providing to be entitled ------------------- to any indemnification (provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) , such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within 30 days after receipt by such Indemnified Party of written notice of the third Person claim. The failure of any Indemnified Party to give such notice as required by this Section ------- 11.5 shall not affect such Indemnified Party's rights hereunder except to the ---- extent the Indemnitor is asserted against or sought to be collected by a third personmaterially prejudiced thereby. Thereafter, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof deliver to the extent then feasible Indemnitor, within ten business days after the Indemnified Party's receipt thereof, copies of all notices and documents (which estimate shall not be conclusive of the final amount of such claimincluding court papers) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within ten business days after receipt thereof and shall deliver to the Indemnitor within ten business days after the receipt of such complaint copies of notices and documents (iincluding court papers) whether or not it disputes received by the Indemnified Party relating to the third Person claim. (b) In the event of the initiation of any legal proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right after the receipt of notice, at its liability option and at its own expense, to be represented by counsel of its choice, reasonably satisfactory to the Indemnified Party hereunder Party, and to control, defend against, negotiate, settle or otherwise deal with respect any proceeding, claim, or demand which relates to such claim; and (ii) if it does not dispute such liabilityany loss, whether liability or not it desires, at its sole cost and expense, to defend the Indemnified Party damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the -------- ------- Indemnified Party within may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to reasonably cooperate with each other in connection with the Notice Period that it does defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and the Indemnified Party becoming subject to liability. If defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party desires to participate inmay retain counsel, but not controlat the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such defense proceeding which settlement obligates the other party to pay money, to perform obligations or settlementto admit liability without the written consent of the other party. After any final judgment or award shall have been rendered by a court, it may do so arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding written agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer, certified or bank cashier's check within 30 days after the date of such notice. (c) To the extent of any such claiminconsistency between this Section 11.5 and ------------ Section 11.6, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, provisions of Section 11.6 shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X).control. ------------ ------------

Third Person Claims. In (a) An Indemnified Party must notify the event that any Indemnitor in writing, and in reasonable detail, of a third Person claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, the Indemnified Party shall is seeking indemnification hereunder promptly notify the Indemnifying after receipt by such Indemnified Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive written notice of the final amount of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such third Person claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file failure of any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does to give such notice as required by this Section 9.4(a) shall not dispute affect such liability and desires to defend against such claim or demand, thenIndemnified Party's rights under this Section 9, except as hereinafter providedif such failure resulted in a claim being made after the time periods provided in Sections 9.1(b) or 9.2(b), if applicable, or to the Indemnifying Party shall have extent such failure is actually prejudicial to the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk rights and obligations of the Indemnified Party becoming subject to liabilityIndemnitor. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwiseThereafter, the Indemnified Party shall deliver to the Indemnitor, within five (5) calendar days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnitor with a copy of the complaint within five (5) calendar days after receipt thereof and shall deliver to the Indemnitor within five (5) calendar days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim (or in each case such earlier time as may be necessary to enable the Indemnitor to respond to the court Proceedings on a timely basis); provided, however, that the failure of any Indemnified Party to give such notice promptly as required by this Section 9.4(a) shall not affect such Indemnified Party's rights under this Section 9, except if such failure resulted in a claim being made after the time periods provided in Sections 9.1(b) or 9.2(b), if applicable, or to the extent such failure is actually prejudicial to the rights and obligations of the Indemnitor. (b) In the event of the initiation of any legal Proceeding against the Indemnified Party by a third Person, the Indemnitor shall have the sole and absolute right but not after the obligation receipt of notice, at its option and at its own expense, to be represented by counsel of its choice that Indemnitor selects using the same standard of care and processes that it uses for selecting counsel in any other similar matters and to control, defend against against, negotiate, settle or otherwise deal with any Proceeding which relates to any Indemnifiable Damages; provided, however, that the Indemnified Party may participate in any such Proceeding with counsel of its choice and at its expense. If the Indemnitor elects to assume control of the defense of a third Person claim, and diligently pursues such defense, any fees and expenses of legal counsel employed by the amount Indemnified Party with respect to such third Person claim shall be considered Indemnifiable Damages for which the Indemnified Party may be entitled to indemnification under this Section 9 only if the named parties in such third Person claim include both the Indemnitor and the Indemnified Party and the Indemnified Party has determined in good faith upon written advice of counsel that a conflict of interest exists, in which case the fees and expenses of its counsel, together with appropriate local counsel, shall be paid by the Indemnitor (provided that in such situation, the Indemnified Party shall not be entitled to employ more than one law firm, other than appropriate local counsel, each at Indemnitor's expense). The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal Proceeding. Such cooperation shall include the retention and the provision of records and information which is reasonably relevant to such third Person claim, and making employees available in a mutually convenient basis to provide additional information and explanation of any material provided hereunder. To the extent the Indemnitor elects not to defend such Proceeding, or does not notify the Indemnified Party in writing of its election to assume the defense thereof, and the Indemnified Party defends against or otherwise deals with any such Proceeding, the Indemnified Party may retain counsel, at the expense of the Indemnitor, and control the defense of such Proceeding until and unless Indemnitor subsequently gives notice of its election to defend; provided that the Indemnified Party shall be entitled to indemnification for counsel fees and expenses incurred during the initial twenty (20) days after notice of such Proceeding is given to the Indemnitor only to the extent that the Indemnified Party in good faith believed that incurrence of such fees and expenses was necessary. Neither the Indemnitor nor the Indemnified Party may settle any such Proceeding, which settlement obligates the other party to pay money, to perform obligations or to admit liability without the written consent of the other party, such consent not to be unreasonably withheld or delayed; provided that the consent of the Indemnified Party shall not be required if (i) there is no finding or admission of any violation of any Requirements of Law or any violation of the same be contested rights of any Person; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Indemnitor; and (iii) the Indemnified Party shall have no liability with respect to any compromise or settlement effected without its consent. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at a mutually binding agreement with respect to each separate matter alleged to be indemnifiable by the Indemnitor hereunder, the Indemnified PartyParty shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by wire transfer within five (5) Business Days after the date of such notice. (c) The provisions of Section 1.5(c) shall, then that portion thereof as with respect to the matters described therein, control to the exclusion of the provisions of Section 9.4(b) (except to the extent a third Person, including a Governmental Authority, makes the Indemnified Party a party to a Proceeding to collect Taxes from the Indemnified Party for which such defense Taxes the Indemnified Party is unsuccessful, shall be conclusively deemed entitled to be a liability indemnified under this Section 9, and to that extent the provisions of Section 9.4(b) shall apply to the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article Xexclusion of Section 1.5(c) hereof).

Third Person Claims. In (i) Promptly after any party hereto (herein the event that "Indemnified Party") has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to Section 11.1 or 11.2 hereof (herein the "Indemnifying Party"), give the Indemnifying Party written notice of such claim, specifying Third Party Claim describing in reasonable detail the nature of such claim and Third Party Claim, a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the amount or of damages attributable to the estimated amount thereof Third Party Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party's request for indemnification under this Agreement; provided, however, that the failure of the -------- ------- Indemnified Party to give timely notice hereunder shall relieve the Indemnifying Party of its indemnification obligations under this Agreement to the extent, but only to the extent that, such failure materially prejudices the Indemnifying Party's ability to defend such claim. Within fifteen (15) days after receipt of such notice (the “Claim Notice”"Election Period"). The , the Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (ia) whether or not it the Indemnifying Party disputes its potential liability to the Indemnified Party hereunder under this Section 11 with respect to such claim; that Third Party Claim and (iib) if it the Indemnifying Party does not dispute such liabilityits potential liability to the Indemnified Party with respect to that Third Party Claim, whether or not it the Indemnifying Party desires, at its the sole cost and expenseexpense of the Indemnifying Party, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Third Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and the amount of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Claim.

Third Person Claims. In (i) Promptly after any party hereto (herein the event that ------------------- "Indemnified Party") has received notice of or has knowledge of any claim for which by a person not a party providing indemnification to this Agreement ("Third Person"), or the “Indemnifying Party”commencement of any action or proceeding by a Third Person (such claim or commencement of such action or proceeding being a "Third Party Claim") would be liable that could give rise to a party or any right of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third personunder this Agreement, the Indemnified Party shall promptly notify shall, as a condition precedent to a claim with respect thereto being made against any party obligated to provide indemnification pursuant to Section 11.1 or 11.2 hereof (herein the "Indemnifying Party"), give the Indemnifying Party written notice of such claim, specifying Third Party Claim describing in reasonable detail the nature of such claim and Third Party Claim, a copy of all papers served with respect to that Third Party Claim (if any), an estimate of the amount or of damages attributable to the estimated amount thereof Third Party Claim to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) and the basis for the Indemnified Party's request for indemnification under this Agreement; provided, however, that the failure of -------- ------- the Indemnified Party to give timely notice hereunder shall relieve the Indemnifying Party of its indemnification obligations under this Agreement to the extent, but only to the extent that, such failure materially prejudices the Indemnifying Party's ability to defend such claim. Within fifteen (15) days after receipt of such notice (the “Claim Notice”"Election Period"). The , the Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (ia) whether or not it the Indemnifying Party disputes its potential liability to the Indemnified Party hereunder under this Section 11 with respect to such claim; that Third Party Claim and (b) if the Indemnifying Party does not dispute its potential liability to the Indemnified Party with respect to that Third Party Claim, whether the Indemnifying Party desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against that Third Party Claim. (ii) if it If the Indemnifying Party does not dispute such liabilityits potential liability to the Indemnified Party and notifies the Indemnified Party within the Election Period that the Indemnifying Party elects to assume the defense of the Third Party Claim through counsel of its own choosing which is acceptable to the Indemnified Party, whether or not it desiresthen the Indemnifying Party shall have the right to defend, at its sole cost and expense, that Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to defend a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 11.3(ii) and the Indemnified Party against such claimwill furnish the Indemnifying Party with all information in its possession with respect to that Third Party Claim and otherwise cooperate with the Indemnifying Party in the defense of that Third Party Claim; provided, however, -------- ------- that the Indemnifying Party shall not enter into any settlement with respect to any Third Party Claim that purports to limit the activities of, or otherwise restrict in any way, any Indemnified party Party or any affiliate of any Indemnified Party without the prior consent of that Indemnified Party (which consent may be withheld in the sole discretion of that Indemnified Party). The Indemnified Party is hereby authorized prior authorized, at the sole cost and expense of the Indemnifying Party, to and file, during the Notice Period to file Election Period, any motion, answer or other pleading, submission or document which it pleadings that the Indemnified Party shall deem necessary or appropriate to protect its interestsinterests or those of the Indemnifying Party. In The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the event Indemnifying Party pursuant to this Section 11.3(ii) and will bear its own costs and expenses with respect to that participation; provided, however, that if the named parties to any such action -------- ------- (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party, and, on its written notification of that employment, the Indemnifying Party shall not have the right to assume or continue the defense of such action on behalf of the Indemnified Party. (iii) If the Indemnifying Party (a) within the Election Period (1) disputes its potential liability to the Indemnified Party under this Section 11, (2) elects not to defend the Indemnified Party pursuant to Section 11.3(ii) or (3) fails to notify the Indemnified Party that the Indemnifying Party notifies elects to defend the Indemnified Party within the Notice Period that it does not dispute such liability and desires pursuant to Section 11.3(ii) or (b) elects to defend against such claim the Indemnified Party pursuant to Section 11.3(ii) but fails diligently and promptly to prosecute or demandsettle the Third Party Claim, then, except as hereinafter provided, then the Indemnifying Indemnified Party shall have the right to defend such claim or demand defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly settled or and vigorously prosecuted by the Indemnified Party to a final conclusionconclusion or settled. The Indemnified Party shall have full control of such defense and proceedings. Notwithstanding the foregoing, if the Indemnifying Party has delivered a written notice to the Indemnified Party to the effect that the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 11 and if such dispute is resolved in such a manner as favor of the Indemnifying Party, the Indemnifying Party shall not be required to avoid any risk bear the costs and expenses of the Indemnified Party becoming subject Party's defense pursuant to liability. If this Section 11.3 or of the Indemnifying Party's participation therein at the Indemnified Party's request. The Indemnifying Party desires to may participate in, but not control, any such defense or settlementsettlement controlled by the Indemnified Party pursuant to this Section 11.3(iii), it may do so at its own cost and expense. If the Indemnifying Party disputes shall bear its liability own costs and expenses with respect to such claimparticipation. (iv) The parties hereto will make appropriate adjustments for any Tax benefits, Tax detriments or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Party shall have the right but not the obligation to defend against such claim, and insurance proceeds in determining the amount of any such claimindemnification obligation under this Section 11, or if the same be contested by the provided that no -------- Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively obligated to seek any payment pursuant to the terms of any insurance policy. All indemnification payments under this Section 11 shall be deemed adjustments to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)Merger consideration provided for herein.

Third Person Claims. In (a) Any party seeking indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the event that Indemnified Party shall notify the Indemnitor in writing, and in reasonable detail, of the third Person claim within thirty (30) days after receipt by such Indemnified Party of written notice of the third Person claim. Any notice of a claim by reason of any claim for which of the representations, warranties or covenants contained in this Agreement shall contain a party providing indemnification (reference to the “Indemnifying Party”) would be liable to a party provision of this Agreement or any other agreement, document or instrument executed hereunder or in connection herewith upon which such claim is based, the facts giving rise to an alleged basis for the claim and (if then known) the amount or method of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (computation of the “Indemnified Party”) is liability asserted against or sought to be collected the Indemnitor by a third personreason of the claim. Thereafter, the Indemnified Party shall promptly notify deliver to the Indemnifying Indemnitor, within 10 Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party shall provide the Indemnitor with a copy of the complaint within five (5) Business Days after receipt thereof and shall deliver to the Indemnitor within seven (7) Business Days after the receipt of such claim, specifying complaint copies of notices and documents (including court papers) received by the nature of such claim and the amount or the estimated amount thereof Indemnified Party relating to the extent then feasible (which estimate third Person claim. The failure to give notice as provided in this Section 11.5 shall not be conclusive relieve the Indemnitor of its obligations under this Article XI except, and then only to the final amount of such claim) (the “Claim Notice”). The Indemnifying Party extent, it shall have been materially prejudiced by such failure. (b) Within ten (10) Business Days after receiving a Claim Notice for indemnification or reimbursement under Section 11.3 or this Section 11.5, the Indemnitor shall, by written notice to the Indemnified Party, either (i) concede or deny liability for the claim in whole or in part, or (ii) in the case of a claim asserted by a third party, advise that the matters set forth in the notice are, or will be, subject to contest or legal proceedings not yet finally resolved. If the Indemnitor concedes liability in whole or in part, it shall, within thirty (30) days from its receipt Business Days of such concession, make payment of the Claim Notice (amount of the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability claim to the Indemnified Party hereunder to the extent of the liability conceded, in immediately available funds equal to the amount of such claim so payable. If the Indemnitor denies liability in whole or in part or advises that the matters set forth in the notice are, or will be, subject to contest or legal proceedings not yet finally resolved, then the Indemnitor shall make no payment (except for the amount of any conceded liability payable as set forth above) until the matter is resolved in accordance with this Agreement. (c) In the case of any third party claim, if within ten (10) Business Days after receiving the notice described in the preceding paragraph (a), the Indemnitor gives written notice to the Indemnified Party stating that the Indemnitor would be liable under the provisions hereof for indemnity in the amount of such claim if such claim were valid and that the Indemnitor disputes and intends to defend against such claim, liability or expense at the Indemnitor’s own cost and expense then counsel for the defense shall be selected by the Indemnitor (subject to the consent of such Indemnified Party which consent shall not be unreasonably withheld) and the Indemnitor shall not be required to consent to any payment to the Indemnified Party with respect to such claim; , liability or expense as long as the Indemnitor is conducting a good faith and (ii) if it does not dispute such liability, whether or not it desires, diligent defense at its sole cost and own expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party assumption of defense of any such matters by the Indemnitor shall relate solely to the claim, liability or expense that is hereby authorized prior subject or potentially subject to and during indemnification If the Notice Period to file any motionIndemnitor assumes such defense in accordance with the preceding sentence, answer or other pleading, submission or document which it shall deem necessary have the right, with the consent of such Indemnified Party, which consent shall not be unreasonably withheld, to settle all indemnifiable matters related to claims by third parties which are susceptible to being settled provided the Indemnitor’s obligation to indemnify such Indemnified Party therefor will be fully satisfied only by payment of money by the Indemnitor pursuant to a settlement which includes a complete release of such Indemnified Party. Notwithstanding anything herein stated, such Indemnified Party shall at all times have the right to fully participate in such defense at its own expense directly or appropriate through counsel; provided, however, if the named parties to protect its interests. In the event that action or proceeding include both the Indemnifying Party notifies Indemnitor and the Indemnified Party within and representation of both parties by the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter providedsame counsel would be inappropriate under applicable standards of professional conduct, the Indemnifying reasonable expense of separate counsel for such Indemnified Party shall be paid by the Indemnitor provided that such Indemnitor shall be obligated to pay for only one counsel for the Indemnified Party. If no such notice of intent to dispute and defend is given by the Indemnitor, or if such diligent good faith defense is not being or ceases to be conducted, such Indemnified Party may undertake the defense of (with counsel selected by such Indemnified Party), and shall have the right to defend compromise or settle, such claim claim, liability or demand by appropriate proceedingsexpense (exercising reasonable business judgment) with the consent of the Indemnitor, which proceedings consent shall not be promptly settled unreasonably withheld. After any final judgment or prosecuted award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a final conclusionsettlement shall have been consummated, in such a manner as to avoid any risk of or the Indemnified Party becoming subject to liability. If and the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of any such claim, or if the same be contested by the Indemnifying Party or by sums so owing to the Indemnified PartyParty by wire transfer, then that portion thereof as to which certified or bank cashier’s check within thirty (30) days after the date of such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)notice.

Third Person Claims. In the event (i) If any Third Person notifies any Indemnified Person with respect to any matter (a “Third Person Claim”) that any may give rise to a claim for which a party providing indemnification (the “against an Indemnifying Party”) would be liable to a party Party under Section 8.1 or any of its officersSection 8.2, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, then the Indemnified Party Person shall promptly notify give written notification to the Indemnifying Party of such claim, specifying this Agreement. Such notification shall be given within 30 days after receipt by the nature Indemnified Person of notice of such claim Third Person Claim, and shall describe in reasonable detail (to the extent known by the Indemnified Person) the facts constituting the basis for such Third Person Claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) claimed Damages (the “Claim Notice”if available). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that no delay or failure on the part of the Indemnified party is hereby authorized prior Person in so notifying the Indemnifying Party shall relieve the Indemnifying Party of any liability or obligation hereunder except to the extent such delay or failure results in insufficient time being available to permit the Indemnifying Party to effectively defend against the Third Person Claim or otherwise prejudices the Indemnifying Party’s ability to defend against the Third Person Claim. Asset Purchase Agreement between Proprietary and during Confidential (ii) The Indemnifying Party may, upon written notice to the Notice Period Indemnified Person, assume control of the defense of such Third Person Claim with counsel reasonably satisfactory to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event Indemnified Person; provided that (a) the Indemnifying Party notifies the Indemnified Person in writing within 30 days after the Indemnified Person has given notice of the Third Person Claim that the Indemnifying Party within will indemnify the Notice Period Indemnified Person from and against the Damages the Indemnified Person may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Person Claim (subject to the provisions of this Article VIII); (b) the ad damnum, if any, is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VIII; (c) the Indemnifying Party provides the Indemnified Person with evidence acceptable to the Indemnified Person that it does not dispute such liability and desires the Indemnifying Party will have the financial resources to defend against the Third Person Claim and fulfill its indemnification obligations hereunder; (d) the Third Person Claim does not involve criminal liability and seeks only money damages and not equitable relief against the Indemnified Person; (e) settlement of, or an adverse judgment with respect to, the Third Person Claim is not, in the good faith judgment of the Indemnified Person, likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of the Indemnified Person, and (f) the Indemnifying Party conducts the defense of the Third Person Claim actively and diligently. (iii) If the Indemnifying Party does not, or is not permitted under the terms of this Agreement to, so assume control of the defense of a Third Person Claim, the Indemnified Person shall control such claim defense. (iv) The Non-controlling Party may participate in such defense at its own expense. The Controlling Party shall keep the Non-controlling Party advised of the status and defense of such Third Person Claim and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Third Person Claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, theninvoice, except as hereinafter providedbilling or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such Third Person Claim. The reasonable fees and expenses of counsel to the Indemnified Person with respect to a Third Person Claim shall be considered Damages for purposes of this Agreement if: (x) the Indemnified Person controls the defense of such Third Person Claim under the terms of this Section 8.3; or (y) the Indemnifying Party assumes control of such defense and the Indemnified Person reasonably concludes that the Indemnifying Party and the Indemnified Person have conflicting interests or different defenses available with respect to such Third Person Claim. (v) The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Person Claim without the prior written consent of the Indemnified Person, which shall not be unreasonably withheld or delayed; provided that the consent of the Indemnified Person shall not be required if the Indemnifying Party agrees in writing to pay any amounts payable under such settlement or judgment and such settlement or judgment includes a complete release of the Indemnified Person from further liability and has no other adverse effect on the Indemnified Person. The Indemnified Person shall send the Indemnifying Party at least ten days prior notice of any settlement of the Third Person Claim that it proposes to enter into, and if the Indemnifying Party has not yet assumed the defense of the Third Person Claim that is capable of being assumed under the terms of Section 8.3(a)(ii), the Indemnifying Party shall have may admit in writing its obligation to provide indemnity as described in Section 8.3(a)(ii)(a), assume the right to defend such claim or demand by appropriate proceedingsdefense, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and reject the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or proposed settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect has assumed the defense of the Third Person Claim or the initial 30-day period in which the Indemnifying Party may elect to such claim, or elects assume the defense has not to defend against such claim, whether by not giving timely notice as provided above or otherwiseyet run, the Indemnified Party Person shall have not agree to any settlement of, or the right but not the obligation to defend against such claim, and the amount entry of any judgment arising from, any such claim, or if Third Person Claim without the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability prior written consent of the Indemnifying Party hereunder (subjectParty, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)which shall not be unreasonably withheld or delayed.

Third Person Claims. (a) In order for a party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any Person other than the event parties to this Agreement (a “Third Person”) against the Indemnified Party, within 10 days after receipt by such Indemnified Party of written notice of the Third Person claim, such Indemnified Party must provide written notice to the Indemnitor describing in reasonable detail the Third Person claim (provided, however, that any claim for which a party delay of the Indemnified Party in providing indemnification (such written notice shall not affect the “Indemnifying Party”) would be liable Indemnitor’s obligations hereunder except to a party the extent the Indemnitor has been adversely affected or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected prejudiced by a third personsuch delay). Thereafter, the Indemnified Party shall promptly notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof deliver to the extent then feasible Indemnitor, within five business days after the Indemnified Party’s receipt thereof, copies of all notices and documents (which estimate shall not be conclusive of the final amount of such claimincluding court papers) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify received by the Indemnified Party (i) whether or not it disputes its liability relating to the Third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a Third Person claim, the Indemnified Party hereunder must notify the Indemnitor with respect a copy of the complaint within five business days after receipt thereof and shall deliver to the Indemnitor within seven business days after the receipt of such complaint copies of notices and documents (including court papers) received by the Indemnified Party relating to the Third Person claim; . (b) In the event of the initiation of any legal proceeding against the Indemnified Party by a Third Person, the Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior to Party may participate in any such proceeding with counsel of its choice and during the Notice Period to file any motionat its expense; and provided further, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies Indemnitor shall not have the Indemnified Party within right to assume the Notice Period defense of any Third Person claims to the extent that it does such claim (x) seeks non-monetary damages, (y) relates to a criminal action or involves claims by a Governmental Body or (z) seeks damages in excess of the maximum amount for which indemnification may be required to be provided by the Indemnitor pursuant to Article X. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such legal proceeding, claim or demand. To the extent the Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, defends against or otherwise deals with any such defense proceeding, claim or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwisedemand, the Indemnified Party shall have may retain counsel, reasonably acceptable to the right but not Indemnitor, at the obligation to defend against such claimexpense of the Indemnitor, and control the amount defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such claimproceeding which settlement obligates the other party to pay money, to perform obligations or if to admit liability without the same be contested by consent of the Indemnifying Party or by the Indemnified Partyother party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed consent not to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)unreasonably withheld.

Third Person Claims. (a) In the event that any claim order for which a party providing indemnification (the “Indemnifying Party”) would to be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to any indemnification hereunder (provided for under this Agreement in respect of, arising out of or involving a claim or demand made by any third Person against the “Indemnified Party”) is asserted against or sought to be collected , such Indemnified Party must notify the Indemnitor in writing, and in reasonable detail, of the third Person claim promptly after receipt by a such Indemnified Party of written notice of the third personPerson claim. Thereafter, the Indemnified Party shall promptly deliver to the Indemnitor copies of all notices and documents (including court papers) received by the Indemnified Party relating to the third Person claim. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to a third Person claim, the Indemnified Party must notify the Indemnifying Party Indemnitor with a copy of the complaint within five (5) business days after receipt thereof and shall deliver to the Indemnitor within seven (7) business days after the receipt of such complaint copies of notices and documents (including court papers) physically served upon the Indemnified Party relating to the third Person claim, specifying . The failure of any Indemnified Party to give the nature Claim Notice promptly (or in five (5) business days in the case of service of a complaint upon the Indemnified Party) or to deliver copies of notices and documents as required by this Section 9.4 shall not affect such claim and the amount or the estimated amount thereof Indemnified Party's rights under this Article IX except to the extent then feasible (which estimate shall not be conclusive such failure is actually prejudicial to the rights and obligations of the final amount of such claimIndemnitor. (b) (In the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt event of the Claim Notice (the “Notice Period”) to notify initiation of any legal proceeding against the Indemnified Party (i) whether or not it disputes its liability to by a third Person, the Indemnified Party hereunder with respect to such claim; Indemnitor shall have the sole and (ii) if it does not dispute such liability, whether or not it desiresabsolute right after the receipt of notice, at its sole cost option and at its own expense, to be represented by counsel of its choice and to control, defend the Indemnified Party against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any loss, liability or damage indemnified against such claimhereunder; provided, however, that the Indemnified party is hereby authorized prior Party may participate in any such proceeding with counsel of its choice and at its expense. The parties hereto agree to and during cooperate fully with each other in connection with the Notice Period to file defense, negotiation or settlement of any motionsuch legal proceeding, answer claim or other pleading, submission or document which it shall deem necessary or appropriate to protect its interestsdemand. In To the event that extent the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does Indemnitor elects not dispute such liability and desires to defend against such proceeding, claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid any risk of and the Indemnified Party becoming subject to liability. If defends against or otherwise deals with any such proceeding, claim or demand, the Indemnified Party desires may retain counsel, reasonably acceptable to participate inthe Indemnitor, but not controlat the expense of the Indemnitor, and control the defense of such proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such defense proceeding which settlement obligates the other party to pay money, to perform obligations or settlementto admit liability without the consent of the other party, it may do so such consent not to be unreasonably withheld. After any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall arrive at its own cost and expense. If the Indemnifying Party disputes its liability a mutually binding agreement with respect to such claim, or elects not each separate matter alleged to defend against such claim, whether be indemnified by not giving timely notice as provided above or otherwisethe Indemnitor hereunder, the Indemnified Party shall have forward to the right but not the obligation Indemnitor notice of any sums due and owing by it with respect to defend against such claim, matter and the amount Indemnitor shall pay all of any such claim, or if the same be contested by the Indemnifying Party or by sums so owing to the Indemnified PartyParty by wire transfer, then that portion thereof as to which certified or bank cashier's check within thirty (30) days after the date of such defense is unsuccessful, shall be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)notice.

Third Person Claims. In the event that any (a) Promptly after receipt by an Indemnified Party of notice of a claim for which a party providing indemnification (the “Indemnifying Party”) would be liable to a party or any of its officers, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted in writing against or sought to be collected it by a third personparty, the such Indemnified Party shall promptly notify shall, if a claim is to be made against an Indemnifying Party under Sections 11.1 or 11.2, give notice to the Indemnifying Party of such claimclaim in accordance with the procedures required under Section 11.1(c) or 11.2(c), specifying as the nature of such case may be. (b) If any claim and the amount or the estimated amount thereof referred to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the “Claim Notice”). The Indemnifying Party shall have thirty (30) days from its receipt of the Claim Notice (the “Notice Period”) to notify the in Section 11.7 is brought against an Indemnified Party (i) whether or not it disputes its liability to the Indemnified Party hereunder with respect to such claim; and (ii) if it does not dispute such liability, whether or not it desires, at its sole cost and expense, to defend the Indemnified Party against such claim; provided, however, that the Indemnified party a proceeding is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter providedcommenced, the Indemnifying Party shall have the right be entitled to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, participate in such a manner as proceeding and, to avoid the extent that it is able and wishes, to assume the defence of such proceeding at its cost with counsel reasonably satisfactory to the Indemnified Party. If notice is given to an Indemnifying Party of the commencement of any risk of proceeding and the Indemnifying Party does not, within 15 Business Days after such notice, give notice to the Indemnified Party becoming of its election to assume the defence of such proceeding, the Indemnifying Party shall be bound by any determination made in such proceeding only if the claims by the Indemnifying Party are within the scope of Sections 11.1 or 11.2 (as the case may be) and subject to liability. If indemnification and for the Indemnified Party desires to participate in, but not control, any such defense or settlementavoidance of doubt, it shall not be assumed that for the purposes of this Agreement that the claims made in such proceeding are within the scope of Sections 11.1 or 11.2 (as the case may do so at its own cost be) and expense. subject to indemnification. (c) If the Indemnifying Party disputes its liability assumes the defence of a proceeding, (i) it shall be conclusively established for the purposes of this Agreement that the claims made in that proceeding are within the scope and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, (iii) the Indemnified Party shall not be entitled to make any separate or collateral claim against the Indemnifying Party with respect to such claim, or elects any matter being defended by the Indemnifying Party in accordance with this Agreement provided the Indemnified Party has not to defend against such claim, whether by not giving timely notice as provided above or otherwise, suffered any Losses in respect thereof; and (iv) the Indemnified Party shall have no liability with respect to any compromise or settlement of such claims effected without its consent. (d) Notwithstanding the foregoing, if an Indemnifying Party assumes the defence of a proceeding and if the Indemnified Party determines in good faith that there is a reasonable probability that such proceeding may adversely affect it other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right but not the obligation to defend against such claimdefend, and the amount of any such claimcompromise, or if the same be contested by settle such proceeding. However, the Indemnifying Party shall not be bound by any determination of a proceeding so defended or by the Indemnified Partyany compromise or settlement effected without its consent, then that portion thereof as to which such defense is unsuccessful, shall may not be conclusively deemed to be a liability of the Indemnifying Party hereunder (subject, if it has timely disputed liability, to a determination that the disputed liability is covered by this Article X)unreasonably withheld.

Third Person Claims. In (a) Notwithstanding any other provision in this Agreement to the event that contrary, if any third party shall notify an Indemnified Party with respect to any matter (a “Third Party Claim”) which may give rise to a claim for which a party providing indemnification (the “against an Indemnifying Party”) would be liable Party pursuant to a party Sections 1.2 or any of its officers1.3, directors, partners, employees, agents or representatives entitled to indemnification hereunder (the “Indemnified Party”) is asserted against or sought to be collected by a third person, then the Indemnified Party shall promptly notify the Indemnifying Party of such claimthereof in writing (a “Third Party Claim Notice” and together with a Direct Claim Notice, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim) (the a “Claim Notice”), which notice shall specify with reasonable particularity (to the extent the information is available) the factual basis for the Third Party Claim and the amount of the Losses, if known. The failure to give, or a delay in giving, a Third Party Claim Notice does not relieve the Indemnifying Party of its obligations except and only to the extent of any prejudice caused to the Indemnifying Party by that failure or delay. (b) The Indemnifying Party shall will have thirty (30) days from its receipt the right to assume control of the defence, compromise or settlement of the Third Party Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes with counsel of its liability choice reasonably satisfactory to the Indemnified Party hereunder so long as (i) the Indemnifying Party notifies the Indemnified Party in writing, within 30 days after the Indemnified Party has given notice of the Third Party Claim, that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any adverse consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (ii) settlement of, or an adverse judgment with respect to such claimthe Third Party Claim will not establish a precedential custom or practice adverse in any material respect to the continuing business interests of any Buyer Indemnitee; and (iii) the Indemnifying Party conducts the defense, compromise or settlement of the Third Party Claim actively and diligently. (c) So long as the Indemnifying Party is conducting the defense of the Third Party Claim in accordance with Section 1.5(b): (i) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, and (ii) if it does the Indemnifying Party may not dispute such liabilityconsent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party, whether which consent shall not be unreasonably or arbitrarily withheld, delayed or conditioned. (d) In the event any condition set forth in Section 1.5(b) is or becomes unsatisfied, (i) the Indemnified Party may assume control of the defence, compromise and settlement of the Third Party Claim and shall be entitled to retain counsel as in its sole discretion may appear advisable, the whole at the Indemnifying Party’s sole cost and expense, (ii) the Indemnifying Party shall not it desireshave the right to control but may participate in the defense, compromise or settlement of the Third Party Claim at its sole cost and expense, to defend and (iii) the Indemnified Party against such claim; provided, however, that may not consent to the Indemnified party is hereby authorized prior to and during the Notice Period to file entry of any motion, answer judgment or other pleading, submission or document which it shall deem necessary or appropriate to protect its interests. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it does not dispute such liability and desires to defend against such claim or demand, then, except as hereinafter provided, the Indemnifying Party shall have the right to defend such claim or demand by appropriate proceedings, which proceedings shall be promptly settled or prosecuted to a final conclusion, in such a manner as to avoid enter into any risk of the Indemnified Party becoming subject to liability. If the Indemnified Party desires to participate in, but not control, any such defense or settlement, it may do so at its own cost and expense. If the Indemnifying Party disputes its liability settlement with respect to such claim, or elects not to defend against such claim, whether by not giving timely notice as provided above or otherwise, the Indemnified Third Party shall have Claim without the right but not the obligation to defend against such claim, and the amount of any such claim, or if the same be contested by the Indemnifying Party or by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful, shall be conclusively deemed to be a liability prior written consent of the Indemnifying Party hereunder (subjectParty, if it has timely disputed liabilitywhich consent shall not be unreasonably withheld, to a determination that the disputed liability is covered by this Article X)delayed or conditioned.