Common use of Procedural Matters Clause in Contracts

Procedural Matters. A party from whom indemnity shall be sought pursuant to the provisions of this Section 6 shall not be liable with respect to such indemnity under paragraph (a) or (b) of this Section 6 unless the indemnified party shall have given written notice to such indemnifying party of the nature of such claim promptly after receipt by such indemnified party of notice of the commencement of any action or proceeding involving such claim; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve such indemnifying party from any liability which it may have to such indemnified party (X) otherwise than on account of this Section 6 or (Y) except to the extent that the failure to give such notice shall have been materially prejudicial to such indemnifying party. Unless in the reasonable judgment of the indemnified party a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, the indemnifying party shall be entitled to participate in and to assume the defense of any such claim, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof. In the case of conflict of interest as set forth above, the indemnifying party shall pay the reasonable fees and expenses of one counsel for all parties indemnified by such indemnifying party with respect to such claim. In no event will the indemnifying party be subject to any liability for any settlement made by any indemnified party without its consent.

Procedural Matters. A party from whom indemnity (i) If a Breach has occurred, the Company shall be sought pursuant provide to the provisions Protected Party Representative and MGP REIT written notice of this Section 6 shall not be liable with respect the event or transaction giving rise to such indemnity under paragraph Breach as soon as reasonably practicable. (aii) The Company, MGP Member and MGP OP agree to provide any information reasonably requested by the Protected Party Representative in connection with any Breach. (iii) Not later than the date that is the later of: (i) thirty (30) business days after receipt by the Company of a written claim from MGM claiming that damages are due as a result of a Breach (a “TPA Claim Notice”) or (bii) of this Section 6 the date on which the underlying tax payment (including estimated tax payments) is due (the “TPA Payment Date”), the Company shall make such payment, unless the indemnified party shall have given written notice to such indemnifying party Company disagrees with the computation of the nature amount required to be paid in respect of such Breach, in which event the parties shall negotiate in good faith to reach an agreement, and if the parties are unable to agree, the procedures in Section 3(e) below shall apply and the payment shall be due within ten (10) business days after the earlier of a determination by the Accounting Firm or an agreement between the Company and the Protected Party Representative as to the amount required to be paid. Any such written claim promptly after receipt by such indemnified party of notice shall set forth a detailed calculation of the commencement of any action amounts due to each Protected Party pursuant to Section 3(a) and shall provide the Company with such evidence or proceeding involving such claim; provided, however, that verification as the failure of any indemnified party Company may reasonably require and the Protected Party Representative shall timely provide all information reasonably requested by the Company to give notice as provided herein shall not relieve such indemnifying party from any liability which it may have to such indemnified party (X) otherwise than on account of this Section 6 or (Y) except to determine the extent that the failure to give such notice shall have been materially prejudicial to such indemnifying party. Unless in the reasonable judgment amount of the indemnified party a conflict payment to be made. (iv) Any outstanding obligations of the Company pursuant to Section 3(d)(iii) as determined by agreement of the parties or determination by the Accounting Firm (the “TPA Payment Amount”) shall accrue interest between such indemnified and indemnifying parties may exist with respect to such claimat the rate of ten percent (10%) per annum, the indemnifying party shall be entitled to participate in and to assume the defense of any such claimcompounded quarterly, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume applicable TPA Payment Date until the defense thereof, the indemnifying party shall not be liable to such indemnified party for TPA Payment Amount (including any legal or other expenses subsequently incurred by the indemnified party interest accrued thereon) has been paid in connection with the defense thereof. In the case of conflict of interest as set forth above, the indemnifying party shall pay the reasonable fees and expenses of one counsel for all parties indemnified by such indemnifying party with respect to such claim. In no event will the indemnifying party be subject to any liability for any settlement made by any indemnified party without its consentfull.

Procedural Matters. A party from whom indemnity The Indemnitor shall be sought pursuant have the right to settle and to defend, through counsel reasonably satisfactory to the provisions Indemnitee, at the Indemnitor's expense, any action which may be brought in connection with all indemnifiable matters subject to this Article 8 (a "Third Party Action") by providing Indemnitee with written notice thereof. The defense by Indemnitor of this Section 6 any such action shall not be liable deemed a waiver by the Indemnitor of its right to assert a dispute with respect to such indemnity under paragraph (a) the responsibility of the Indemnitor with respect to the Loss in question. The Indemnitee shall not have the right to settle or (b) compromise any claim against the Indemnitee without the prior written consent of this Section 6 the Indemnitor unless the indemnified party Indemnitor has elected not to defend such claim in which event the Indemnitee shall have given written notice the right to such indemnifying party of assume the nature defense of such claim promptly after receipt by in such indemnified party of notice of manner as it deems appropriate, at the commencement of any action or proceeding involving such claimIndemnitor's expense; provided, however, that any such settlement or compromise, as a condition precedent thereto, must include a release of the failure Indemnitor in form and substance satisfactory to such Indemnitor from such claim. No Indemnitee shall pay or voluntarily permit the determination of any indemnified party to give notice as provided herein shall not relieve such indemnifying party from any liability which it may have is subject to any such indemnified party (X) otherwise than on account of this Section 6 action while the Indemnitor is negotiating the settlement thereof or (Y) contesting the matter, except to with the extent that the failure to give such notice shall have been materially prejudicial to such indemnifying party. Unless in the reasonable judgment prior written consent of the indemnified party a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claimIndemnitor, the indemnifying party shall be entitled to participate in and to assume the defense of any such claim, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party which consent shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof. In the case of conflict of interest as set forth above, the indemnifying party shall pay the reasonable fees and expenses of one counsel for all parties indemnified by such indemnifying party with respect to such claim. In no event will the indemnifying party be subject to any liability for any settlement made by any indemnified party without its consentunreasonably withheld.

Procedural Matters. (a) A party intending to claim indemnification under this Agreement (whether pursuant to this Article 8 or otherwise) ("Indemnified Party") must notify, in writing, the party from whom indemnity indemnification is sought ("Indemnifying Party") promptly after learning of any Loss, Action or any other fact which, if true, would entitle the Indemnified Party to indemnification under this Agreement (the "Notice of Claim"); provided, however, the Indemnified Party's failure to give prompt notice shall be sought pursuant not constitute a defense (in whole or in part) to any claim by the Indemnified Party against the Indemnifying Party for indemnification, except and only to the provisions of this Section 6 shall not be liable with respect to extent that such indemnity under paragraph (a) or (b) of this Section 6 unless the indemnified party failure shall have given written notice caused or materially increased such liability or materially and adversely affected the ability of the Indemnifying Party to such indemnifying party defend against or reduce its liability. (i) A Notice of Claim shall set forth (A) a brief description of the nature of the potential or actual Loss and (B) to the extent then feasible the total amount of Loss anticipated (including any costs or expenses that have been or may be reasonably incurred in connection therewith). Payment of the amount of actual Loss due the Indemnified Party as set forth in a Notice of Claim shall be made by the Indemnifying Party no later than the thirtieth (30th) day after the date of the Notice of Claim (or such claim promptly later date as the Indemnifying Party receives written notice that an actual Loss has occurred), unless the provisions of subsection 8.4(a)(ii) are applicable. (ii) If the Indemnifying Party (acting reasonably) shall reject any Loss as to which a Notice of Claim is sent by the Indemnified Party, the Indemnifying Party shall give written notice of such rejection to the Indemnified Party within thirty (30) days after receipt of the Notice of Claim. Upon such rejection, the parties shall attempt in good faith to resolve any disagreement, and payment of the amount of actual Loss shall be made by the Indemnifying Party within five (5) days of mutual resolution of any disagreement. If any such disagreement remains unresolved as of the forty-fifth (45th) day after receipt of the Notice of Claim, the dispute shall be determined by an independent third party selected jointly by Purchasers and Sellers, and the decision of such third party shall, in the absence of manifest error, be final and binding on all parties. If the Notice of Claim is determined by such indemnified third party to be proper, payment of the amount of Loss due the Indemnified Party as set forth in the Notice of Claim shall be made by the Indemnifying Party no later than the fifth (5th) business day after such determination is rendered. (b) As a condition precedent to any claim by an Indemnified Party for indemnification under this Agreement for any Action instituted by a third party the liability or the costs or expenses of which are Losses (a "Third Party Claim"), the Indemnified Party must tender the defense of the Third Party Claim to the Indemnifying Party in the Notice of Claim. The Indemnifying Party may undertake the defense of the Third Party Claim with counsel reasonably acceptable to the Indemnified Party by notice to the Indemnified Party not later than thirty (30) days after receiving notice of such Third Party Claim. (c) The Indemnifying Party's failure to confirm to the commencement Indemnified Party that it will undertake such defense shall be deemed to be a waiver by the Indemnifying Party of its right to undertake the defense of that Third Party Claim. If, however, the Indemnifying Party undertakes the defense of a Third Party Claim, the Indemnified Party will, at the Indemnifying Party's expense, (i) reasonably cooperate with the Indemnifying Party and its counsel in the investigation and defense of that Third Party Claim and (ii) have the right to participate in such investigation and defense; provided, that, the Indemnifying Party will control the negotiation, tactics, trial, appeals and other matters and proceedings related to that claim, except that the Indemnifying Party will not, without the prior written consent of the Indemnified Party, require the Indemnified Party to take or refrain from taking any action, or make any public statement, which the Indemnified Party reasonably considers to be against its interest, or consent to any settlement that requires the Indemnified Party to make any payment that is not fully indemnified by the Indemnifying Party under this Agreement. (d) If the Indemnifying Party does not undertake the defense of any action Third Party Claim, the Indemnified Party, at the expense of the Indemnifying Party, may undertake the defense of that claim with counsel of its choosing and the Indemnifying Party in that event shall reasonably cooperate with the Indemnified Party and its counsel in the investigation and defense of that Third Party Claim, but the Indemnified Party will control such investigation and defense at the expense of the Indemnifying Party. (e) Notwithstanding anything contained in this Section 8.4 to the contrary, if both the Indemnifying Party and the Indemnified Party are named as parties or proceeding involving subject to such claimThird Party Claim and either such party determines with advice of counsel that a material conflict of interest between such parties may exist in respect of such Third Party Claim, the Indemnifying Party may decline to assume the defense on behalf of the Indemnified Party or the Indemnified Party may retain the defense on its own behalf, and, in either such case, after notice to such effect is duly given hereunder to the other party, the Indemnifying Party shall be relieved of any obligation to assume the defense on behalf of the Indemnified Party, but shall be required to pay the out-of-pocket legal costs and expenses (such as reasonable attorneys' fees and disbursements) of such defense; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve such indemnifying party from any liability which it may have to such indemnified party (X) otherwise than on account of this Section 6 or (Y) except to the extent that the failure to give such notice shall have been materially prejudicial to such indemnifying party. Unless in the reasonable judgment of the indemnified party a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, the indemnifying party shall be entitled to participate in and to assume the defense of any such claim, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party Indemnifying Party shall not be liable to for such indemnified party for expenses on account of more than one separate firm of attorneys (and, if necessary, local counsel) at any legal or other expenses subsequently incurred by the indemnified party time representing such Indemnified Party in connection with any Third Party Claim or separate Third Party Claim in the defense thereof. In same jurisdiction arising out of or based upon substantially the case of conflict of interest as set forth abovesame allegations or circumstances. (f) The Indemnified Party and the Indemnifying Party agree to make available to each other, the indemnifying party shall pay the reasonable fees their counsel and expenses of one counsel for other representatives, all parties indemnified by such indemnifying party with respect information and documents available to such claim. In no event will the indemnifying party be subject them that relate to any liability Third Party Claim, and to render to each other such assistance as may reasonably be requested to ensure the proper and adequate defense of such Third Party Claim. (g) Each Indemnified Party shall take commercially reasonable actions to mitigate Losses, including pursuing insurance claims and Third Party Claims, and shall reasonably consult and cooperate with each Indemnifying Party with a view towards mitigating Losses, in connection with claims for any settlement made by any indemnified party without its consentwhich an Indemnified Person seeks indemnification hereunder.

Procedural Matters. (a) A party intending to claim indemnification under this Agreement (whether pursuant to this Article 13 or otherwise) (“Indemnified Party”) must notify, in writing, the party from whom indemnity indemnification is sought (“Indemnifying Party”) promptly after learning of any Loss, Action or any other fact which, if true, would entitle the Indemnified Party to indemnification under this Agreement (the “Notice of Claim”); provided, however, the Indemnified Party’s failure to give prompt notice shall not constitute a defense (in whole or in part) to any claim by the Indemnified Party against the Indemnifying Party for indemnification, except and only to the extent that such failure shall have caused or materially increased such liability or materially and adversely affected the ability of the Indemnifying Party to defend against or reduce its liability. (i) A Notice of Claim shall set forth (A) a brief description of the nature of the potential or actual Loss and (B) to the extent then feasible the total amount of Loss anticipated (including any costs or expenses that have been or may be reasonably incurred in connection therewith). Payment of the amount of actual Loss due the Indemnified Party as set forth in a Notice of Claim shall be sought pursuant made by the Indemnifying Party no later than the thirtieth (30th) day after the date of the Notice of Claim (or such later date as the Indemnifying Party receives written notice that an actual Loss has occurred), unless the provisions of subsection 13.4(a)(ii) are applicable. (ii) If the Indemnifying Party (acting reasonably) shall reject any Loss as to which a Notice of Claim is sent by the Indemnified Party, the Indemnifying Party shall give written notice of such rejection to the Indemnified Party within thirty (30) days after receipt of the Notice of Claim. Upon such rejection, the parties shall attempt in good faith to resolve any disagreement, and payment of the amount of actual Loss shall be made by the Indemnifying Party within five (5) days of mutual resolution of any disagreement. If any such disagreement remains unresolved as of the forty-fifth (45th) day after receipt of the Notice of Claim, the dispute shall be determined by an independent third party selected jointly by Purchasers and Sellers, and the decision of such third party shall, in the absence of manifest error, be final and binding on all parties. If the Notice of Claim is determined by such third party to be proper, payment of the amount of Loss due the Indemnified Party as set forth in the Notice of Claim shall be made by the Indemnifying Party no later than the fifth (5th) business day after such determination is rendered. (b) As a condition precedent to any claim by an Indemnified Party for indemnification under this Agreement for any Action instituted by a third party the liability or the costs or expenses of which are Losses (a “Third Party Claim”), the Indemnified Party must tender the defense of such Third Party Claim to the Indemnifying Party in the Notice of Claim. The Indemnifying Party may undertake the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Party by notice to the Indemnified Party not later than thirty (30) days after receiving notice of such Third Party Claim. (c) The Indemnifying Party’s failure to confirm to the Indemnified Party that the Indemnifying Party will undertake such defense shall be deemed to be a waiver by the Indemnifying Party of its right to undertake the defense of such Third Party Claim. If, however, the Indemnifying Party undertakes the defense of such Third Party Claim, the Indemnified Party will (i) at the Indemnifying Party’s expense, reasonably cooperate with the Indemnifying Party and its counsel in the investigation and defense of such Third Party Claim and (ii) at the Indemnified Party’s expense, have the right to participate in such investigation and defense; provided that the Indemnifying Party will control (subject to the provisions of paragraphs (d) and (e) below) the negotiation, tactics, trial, appeals and other matters and proceedings related to such claim, except that the Indemnifying Party will not, without the prior written consent of the Indemnified Party, require the Indemnified Party to take or refrain from taking any action, or make any public statement, which the Indemnified Party reasonably considers to be against its interest, or consent to any settlement that requires the Indemnified Party to make any payment that is not fully indemnified by the Indemnifying Party under this Agreement. (d) If the Indemnifying Party does not undertake the defense of any Third Party Claim, the Indemnified Party, at the expense of the Indemnifying Party, may undertake the defense of such Third Party Claim with counsel of its choosing, and the Indemnifying Party in that event shall reasonably cooperate with the Indemnified Party and its counsel in the investigation and defense of such Third Party Claim, but the Indemnified Party will control such investigation and defense at the expense of the Indemnifying Party. (e) Notwithstanding anything contained in this Section 6 shall not be liable 13.4 to the contrary, if both the Indemnifying Party and the Indemnified Party are named as parties or subject to any Third Party Claim and either such party determines with advice of counsel that a material conflict of interest between such parties may exist in respect of such Third Party Claim, the Indemnifying Party may decline to assume the defense on behalf of the Indemnified Party or the Indemnified Party may retain the defense on its own behalf, and, in either such indemnity under paragraph (a) or (b) of this Section 6 unless the indemnified party shall have given written case, after notice to such indemnifying party effect is duly given hereunder to the other party, the Indemnifying Party shall be relieved of any obligation to assume the defense on behalf of the nature Indemnified Party, but shall be required to pay the out-of-pocket legal costs and expenses (such as reasonable attorneys’ fees and disbursements) of such claim promptly after receipt by such indemnified party of notice of the commencement of any action or proceeding involving such claimdefense; provided, however, that the failure of any indemnified party to give notice as provided herein shall not relieve such indemnifying party from any liability which it may have to such indemnified party (X) otherwise than on account of this Section 6 or (Y) except to the extent that the failure to give such notice shall have been materially prejudicial to such indemnifying party. Unless in the reasonable judgment of the indemnified party a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, the indemnifying party shall be entitled to participate in and to assume the defense of any such claim, jointly with any other indemnifying party similarly notified, to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party Indemnifying Party shall not be liable to for such indemnified party for expenses on account of more than one separate firm of attorneys (and, if necessary, local counsel) at any legal or other expenses subsequently incurred by the indemnified party time representing such Indemnified Party in connection with any Third Party Claim or separate Third Party Claim in the defense thereof. In same jurisdiction arising out of or based upon substantially the case of conflict of interest as set forth abovesame allegations or circumstances. (f) The Indemnified Party and the Indemnifying Party agree to make available to each other, the indemnifying party shall pay the reasonable fees their counsel and expenses of one counsel for other representatives, all parties indemnified by such indemnifying party with respect information and documents available to such claim. In no event will the indemnifying party be subject them that relate to any liability Third Party Claim, and to render to each other such assistance as may reasonably be requested to ensure the proper and adequate defense of such Third Party Claim. (g) Each Indemnified Party shall take commercially reasonable actions to mitigate Losses, including pursuing insurance claims and Third Party Claims, and shall reasonably consult and cooperate with each Indemnifying Party with a view towards mitigating Losses, in connection with claims for any settlement made by any indemnified party without its consentwhich an Indemnified Person seeks indemnification hereunder.

Procedural Matters. A party from whom indemnity (a) To obtain indemnification under this Agreement, Indemnitee shall be sought submit to CEO a written request for indemnification at such time as determined by Indemnitee in Indemnitee’s sole discretion. (b) Upon written request by Indemnitee for indemnification pursuant to the provisions of this Section 6 shall not be liable Agreement, a determination, if required by applicable law, with respect to such indemnity under paragraph Indemnitee’s entitlement to indemnification shall be made as follows: (ai) upon Indemnitee’s request, by Independent Counsel selected by the Company in a written opinion to the board of directors of the Company, a copy of which shall be delivered to Indemnitee; or (bii) if no such request is made by Indemnitee for a determination by Independent Counsel, (A) by a majority vote of this Section 6 unless the indemnified party shall have given written notice to such indemnifying party a quorum of the nature Disinterested Directors; or (B) if a quorum of Disinterested Directors is not obtainable or, even if obtainable, if a majority of such claim promptly quorum of Disinterested Directors so directs, by Independent Counsel selected (x) if a quorum of Disinterested Directors is obtainable, by a majority vote of a quorum of Disinterested Directors or (y) if a quorum of Disinterested Directors is not obtainable, by the board of directors of the Company, in each case in a written opinion to the board of directors of the Company, a copy of which shall be delivered to Indemnitee; or (C) if a majority of a quorum of Disinterested Directors so directs, by the stockholders of the Company. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) calendar days after such determination. (c) If the person, persons or entity empowered or selected to determine Indemnitee’s entitlement to indemnification has not made a determination within sixty (60) calendar days after receipt by such indemnified party of notice the Company of the commencement request by Indemnitee for indemnification, the requisite determination of entitlement to indemnification will be deemed to have been made, and Indemnitee, to the fullest extent not prohibited by law, shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact by Indemnitee necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification; or (ii) a final judicial determination that any action or proceeding involving all such claimindemnification is expressly prohibited under applicable law; provided, however, that such sixty (60) calendar day period may be extended for a reasonable time, not to exceed an additional thirty (30) calendar days, if the failure of any indemnified party to give notice as provided herein shall not relieve such indemnifying party from any liability which it may have to such indemnified party (X) otherwise than on account of this Section 6 person, persons or (Y) except to entity making the extent that the failure to give such notice shall have been materially prejudicial to such indemnifying party. Unless in the reasonable judgment of the indemnified party a conflict of interest between such indemnified and indemnifying parties may exist determination with respect to entitlement to indemnification in good faith requires such claimadditional time to obtain or evaluate documentation and/or information relating to such determination. (d) The Company will promptly advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or a basis for which indemnification has been denied. Indemnitee shall reasonably cooperate with the indemnifying party person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. (e) If (i) a determination is made pursuant to this Agreement that Indemnitee is not entitled to participate in and indemnification under this Agreement or (ii) there has been any failure by the Company to assume the defense make timely payment or advancement of any amounts due hereunder, Indemnitee may petition the Court of Chancery of the State of Delaware to adjudicate Indemnitee’s entitlement to such claimindemnification or advancements due hereunder. The Company will pay any and all Expenses reasonably incurred by or on behalf of Indemnitee in connection with the investigation and resolution of such issues. If determination is made pursuant to this Agreement that Indemnitee is entitled to indemnification under this Agreement, jointly with then the Company shall be bound by such determination, including in any other indemnifying party similarly notifiedProceeding. (f) The parties intend and agree that, to the extent permitted by law, in connection with any determination with respect to entitlement to indemnification hereunder: (i) it will be presumed that it may wish, with counsel reasonably satisfactory Indemnitee is entitled to such indemnified partyindemnification under this Agreement, and after notice from that the indemnifying party Company or any other person or entity challenging such right will have the burden of proof to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party overcome that presumption in connection with the defense thereof. In making by any person, persons or entity of any determination contrary to that presumption; (ii) the case termination of conflict any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of interest as set forth abovenolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the indemnifying party shall pay best interests of the reasonable fees and expenses of one counsel for all parties indemnified by such indemnifying party applicable Company Entity, and, with respect to such claimany criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the applicable Company Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the applicable Company Entity, or on the advice of legal counsel for the applicable Company Entity or for Indemnitee or on information or records given in reports made to the applicable Company Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the applicable Company Entity or Indemnitee; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. In no event will The provisions of this clause (f) shall not be deemed to be exclusive or to limit in any way the indemnifying party other circumstances in which Indemnitee may be subject deemed to any liability for any settlement made by any indemnified party without its consenthave met the applicable standard of conduct set forth in this Agreement.

Procedural Matters. A party from whom indemnity (i) Any Notice of Claim shall be sought pursuant to the provisions of this Section 6 shall not be liable with respect to such indemnity under paragraph set forth (aA) or (b) of this Section 6 unless the indemnified party shall have given written notice to such indemnifying party a brief description of the nature of the potential or actual Adverse Consequences and (B) to the extent then feasible, the total dollar amount of the anticipated cost to the Indemnified Party of the Adverse Consequences (including any costs or expenses that have been or may be reasonably incurred in connection therewith) (the “Indemnification Amount”). In addition, if any I-trax Notice of Claim involves a claim under Section 9(b)(i), such claim promptly I-trax Notice of Claim shall also set forth the means of recourse selected by I-trax in accordance with Section 9(f). Payment of the Indemnification Amount to the Indemnified Party as set forth in a Notice of Claim shall be made by the Indemnifying Party no later than the thirtieth (30th) day after receipt by the date of the Notice of Claim (or such indemnified party of later date as the Indemnifying Party receives written notice of the commencement Indemnification Amount), unless the provisions of any action or proceeding involving such claim; provided, however, that subsection 9(j)(ii) are applicable. (ii) If the failure of any indemnified party to give notice as provided herein Indemnifying Party (acting reasonably) shall not relieve such indemnifying party from any liability which it may have to such indemnified party (X) otherwise than on account of this Section 6 or (Y) except object to the extent that nature of a claim as being an indemnifiable claim and/or to any Adverse Consequence as to which a Notice of Claim is sent by the failure to give such notice shall have been materially prejudicial to such indemnifying party. Unless in the reasonable judgment of the indemnified party a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, the indemnifying party shall be entitled to participate in and to assume the defense of any such claim, jointly with any other indemnifying party similarly notified, Indemnified Party or to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party Indemnification Amount in connection with such Adverse Consequences, the defense thereofIndemnifying Party shall give written notice of such objection (“Objection Notice”) to the Indemnified Party within twenty (20) business days after receipt of the Notice of Claim. The Objection Notice shall specify in reasonable detail the reason for the objection. Upon such objection, the Parties shall attempt in good faith to resolve any disagreement, and any payment required to be made by any Party as a result of the mutual resolution of such disagreement shall be made within five (5) business days of such mutual resolution. If any such disagreement remains unresolved as of the tenth (10th) business day after receipt of Objection Notice, the dispute shall be determined by an independent third party (the “Neutral Party”) selected jointly by I-trax and the Member, and the decision of such Neutral Party shall, in the absence of manifest error, be final and binding on the Parties. If I-trax and the Member are unable to agree on the choice of a Neutral Party, they will select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Upon resolution of the dispute by the Neutral Party, any payment deemed to be required to be made by any Party pursuant to the Neutral Party’s determination shall be made no later than the fifth (5th) business day after such determination is rendered. In the case of conflict of interest event I­trax and the Member submit any unresolved disputes to a Neutral Party for resolution as set forth aboveprovided this Section 9(j), I-trax and the indemnifying party shall pay Member will share responsibility for the reasonable fees and expenses of one counsel the Neutral Party as follows: (A) If the Neutral Party resolves all of the disputes in favor of I-trax, the Member will be responsible for all parties indemnified by such indemnifying party of the fees and expenses of the Neutral Party; (B) If the Neutral Party resolves all of the disputes in favor of the Member, I-trax will be responsible for all of the fees and expenses of the Neutral Party; and (C) If the Neutral Party resolves some of the disputes in favor of I­trax and the rest of the disputes in favor of the Member, I-trax will be responsible for a proportionate amount of the fees and expenses of the Neutral Party based on the dollar amount of the dispute resolved against I-trax compared to the total dollar amount of all disputes submitted to the Neutral Party and the Member shall be responsible for a proportionate amount of the fees and expenses of the Neutral Party based on the dollar amount of the disputes resolved against the Member compared to the total dollar amount of all disputes submitted to the Neutral Party. (iii) Each Indemnified Party shall take commercially reasonable actions to mitigate Adverse Consequences, including pursuing insurance claims and Third Party Claims, and shall reasonably consult and cooperate with respect to such claim. In no event will the indemnifying party be subject to any liability each Indemnifying Party with a view towards mitigating Losses, in connection with claims for any settlement made by any indemnified party without its consentwhich an Indemnified Party seeks indemnification hereunder.

Procedural Matters. (a) A party intending to claim indemnification hereunder (whether pursuant to this Article 13 or otherwise) (“Indemnified Party”) must notify, in writing, the party from whom indemnity indemnification is sought (“Indemnifying Party”) promptly after learning of any Loss, Action or any other fact which, if true, would entitle the Indemnified Party to indemnification under this Agreement (the “Notice of Claim”); provided, however, the Indemnified Party’s failure to give prompt notice shall not constitute a defense (in whole or in part) to any claim by the Indemnified Party against the Indemnifying Party for indemnification, except and only to the extent that such failure shall have caused or materially increased such liability or materially and adversely affected the ability of the Indemnifying Party to defend against or reduce its liability. (i) A Notice of Claim shall set forth (A) the basis of the claim and a brief description of the nature of the potential or actual Loss and (B) to the extent then feasible the total amount of Loss anticipated (including any costs or expenses that have been or may be reasonably incurred in connection therewith). Payment of the amount of actual Loss due the Indemnified Party as set forth in a Notice of Claim shall be sought pursuant made by the Indemnifying Party no later than the thirtieth (30th) day after the date of the Notice of Claim (or such later date as the Indemnifying Party receives written notice that an actual Loss has occurred), unless the provisions of subsection 13.4(a)(ii) are applicable. (ii) If the Indemnifying Party (acting reasonably) shall reject any Loss as to which a Notice of Claim is sent by the Indemnified Party, the Indemnifying Party shall give written notice of such rejection to the Indemnified Party within thirty (30) days after receipt of the Notice of Claim. Upon such rejection, the parties shall attempt in good faith to resolve any disagreement, and payment of the amount of actual Loss shall be made by the Indemnifying Party within five (5) Business Days of mutual resolution of any disagreement. If any such disagreement remains unresolved as of the forty-fifth (45th) day after receipt by the Indemnifying Party of the Notice of Claim, the dispute shall be determined by an independent third party selected jointly by Purchasers and Seller, and the decision of such third party shall, in the absence of manifest error, be final and binding on all parties. If the Notice of Claim is determined by such third party to be proper, payment of the amount of Loss due the Indemnified Party as set forth in the Notice of Claim shall be made by the Indemnifying Party no later than the fifth (5th) Business Day after such determination is rendered. (b) As a condition precedent to any claim by an Indemnified Party for indemnification hereunder for any Action instituted by a third party the liability or the costs or expenses of which are Losses (a “Third Party Claim”), the Indemnified Party must tender the defense of such Third Party Claim to the Indemnifying Party in the Notice of Claim. The Indemnifying Party may undertake the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnified Party by notice to the Indemnified Party not later than thirty (30) days after receiving notice of such Third Party Claim. (c) The Indemnifying Party’s failure to confirm to the Indemnified Party that the Indemnifying Party will undertake such defense shall be deemed to be a waiver by the Indemnifying Party of its right to undertake the defense of such Third Party Claim. If, however, the Indemnifying Party undertakes the defense of such Third Party Claim, the Indemnified Party will (i) reasonably cooperate with the Indemnifying Party and its counsel in the investigation and defense of such Third Party Claim and (ii) have the right to participate in such investigation and defense; provided that the Indemnifying Party will control (subject to the provisions of paragraphs (d) and (e) below) the negotiation, tactics, trial, appeals and other matters and proceedings related to such claim, except that the Indemnifying Party will not, without the prior written consent of the Indemnified Party, require the Indemnified Party to take or refrain from taking any action, or make any public statement, which the Indemnified Party reasonably considers to be against its interest, or consent to any settlement that requires the Indemnified Party to make any payment that is not fully indemnified by the Indemnifying Party hereunder. (d) If the Indemnifying Party does not undertake the defense of any Third Party Claim, the Indemnified Party, at the expense of the Indemnifying Party, may undertake the defense of such Third Party Claim with counsel of its choosing, and the Indemnifying Party in that event shall reasonably cooperate with the Indemnified Party and its counsel in the investigation and defense of such Third Party Claim, but the Indemnified Party will control such investigation and defense at the expense of the Indemnifying Party. (e) Notwithstanding anything contained in this Section 6 shall not be liable 13.4 to the contrary, if both the Indemnifying Party and the Indemnified Party are named as parties or subject to any Third Party Claim and either such party determines with advice of counsel that a material conflict of interest between such parties may exist in respect of such Third Party Claim, the Indemnifying Party may decline to assume the defense on behalf of the Indemnified Party or the Indemnified Party may retain the defense on its own behalf, and, in either such indemnity under paragraph (a) or (b) of this Section 6 unless the indemnified party shall have given written case, after notice to such indemnifying party effect is duly given hereunder to the other party, the Indemnifying Party shall be relieved of any obligation to assume the defense on behalf of the nature Indemnified Party, but shall be required to pay the out-of-pocket legal costs and expenses (such as reasonable attorneys’ fees and disbursements) of such claim promptly after receipt by such indemnified party of notice of the commencement of any action or proceeding involving such claimdefense; provided, however, that the failure of any indemnified party to give notice as provided herein Indemnifying Party shall not relieve be liable for such indemnifying party from any liability which it may have to such indemnified party (X) otherwise than expenses on account of this Section 6 more than one separate firm of attorneys (and, if necessary, local counsel) at any time representing such Indemnified Party in connection with any Third Party Claim or (Y) except to the extent that the failure to give such notice shall have been materially prejudicial to such indemnifying party. Unless separate Third Party Claim in the reasonable judgment same jurisdiction arising out of or based upon substantially the indemnified party same allegations or circumstances. (f) The Indemnified Party and the Indemnifying Party agree to make available to each other, their respective counsel and other representatives, all information and documents available to them that relate to any Third Party Claim, and to render to each other such assistance as may reasonably be requested to ensure the proper and adequate defense of such Third Party Claim. The above notwithstanding, in cases involving a conflict of interest between such indemnified and indemnifying parties may exist as described in paragraph (e) above, if counsel advises that sharing specific information or documents with respect the other party hereto could be detrimental to such claim, the indemnifying party shall be entitled to participate in and to assume the party’s own defense of any such claim, jointly with any other indemnifying party similarly notified, due to the extent that it may wishconflict of interest, with counsel reasonably satisfactory then such specific information and/or documents need not be made available to such indemnified partythe other party pursuant hereto. (g) Each Indemnified Party shall take commercially reasonable actions to mitigate Losses, including pursuing insurance claims and Third Party Claims, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereofshall reasonably consult and cooperate with each Indemnifying Party with a view towards mitigating Losses, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof. In the case of conflict of interest as set forth above, the indemnifying party shall pay the reasonable fees and expenses of one counsel claims for all parties indemnified by such indemnifying party with respect to such claim. In no event will the indemnifying party be subject to any liability for any settlement made by any indemnified party without its consentwhich an Indemnified Person seeks indemnification hereunder.