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(d) The amount of any Losses that an Indemnified Party recovers under this Article VII shall be net of (i) any amounts which such Indemnified Party actually recovers and collects from third parties, (ii) any Tax benefits realized attributable or with respect to such Losses and (iii) any insurance proceeds actually received by such Indemnified Party, less any deductibles or retention amounts, co- payments, related premium increases or other payment obligations that directly result from any Losses (including reasonable attorneys’ fees and other costs of collection to the extent not payable or reimbursable by third parties) that relate to or arise from the making of the claim for indemnification. If any Tax benefits are realized after the indemnification period provided herein, the amount of such Tax benefits shall be promptly paid to the Indemnifying Party (as defined in Section 7.4(a)) within ten (10) Business Days of the realization of such Tax benefits.

Section 7.4 Notice and Defense of Claims .

(a) Any party seeking indemnification pursuant to Section 7.2(a) or 7.2(c) above (an “ Indemnified Party ”) shall give prompt notice to Seller if pursuant to Section 7.2(a), or to Buyer if pursuant to Section 7.2(c) (each, as is applicable, the “ Indemnifying Party ”) of any matter which an Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, stating the amount of the Losses, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The obligations and liabilities of the Indemnifying Party under this Article VII with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VII (“ Third Party Claims ”) shall be governed by and contingent upon the following additional terms and conditions: if an Indemnified Party shall receive notice of any Third Party Claim, the Indemnified Party shall give the Indemnifying Party prompt notice of such Third Party Claim; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent the Indemnifying Party is materially prejudiced by such failure.

(b) The Indemnifying Party shall have the right to assume and control the defense of such Third Party Claims at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within fifteen (15) Business Days of the receipt of such notice from the Indemnified Party. Such assumption shall constitute an acknowledgement by the Indemnifying Party of its obligations to indemnify the Indemnified Party with respect to such Third Party Claims. In the event the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party may participate in such defense, but in any such case the expenses of the Indemnified Party shall be paid by the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party 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 required by the Indemnifying Party, and the Indemnifying Party shall reimburse the Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld.


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