Exhibit 10.9**REPLACEMENT****CARRIER****AGREEMENT**     This Replacement Carrier Agreement (“Agreement”) is entered into as of the 6th day ofMay 2005 (the “Effective Date”) by Hartford Fire Insurance Company, Hartford Casualty InsuranceCompany, and Twin City Fire Insurance Company (collectively “Hartford”), property and casualtyinsurance companies with offices at Hartford Plaza, Hartford, Connecticut, 06115 and ProformanceInsurance Company, (“Proformance”) a New Jersey domestic property and casualty insurance companywith offices at 4 Paragon Way, Freehold, New Jersey 07728.**WITNESSETH**     WHEREAS, the parties desire to enter into a replacement carrier agreement pursuant to whichHartford will transfer to Proformance the obligations of Hartford to offer renewals, the RenewalRights (as defined herein) on the New Jersey Personal Business (as defined herein) as of theNonrenewal Date (as defined herein) and Proformance will acquire the Renewal Rights in exchange forconsideration and fees set forth herein; and     WHEREAS, the parties acknowledge that they must obtain the approval of the Commissioner ofBanking and Insurance of the State of New Jersey (“Commissioner”) for the transaction set forth inthis Agreement;     NOW, THEREFORE, in consideration of the foregoing premises and the mutual representations,warranties, covenants and agreements set forth, the parties hereto agree as follows:     I. Definitions. The following terms shall have the respective meanings set forthbelow throughout this Agreement:          A. “AARP Business” shall mean any homeowners insurance, dwelling fire insurance, or personalexcess liability insurance policies which Hartford presently writes or will write in the futurearising out of or relating to Hartford’s present or future direct response marketing programs orrelationships with AARP Services, Inc.          B. “Closing” shall mean the closing of the transaction contemplated by this Agreement.          C. “Closing Date” shall mean the later of May 27, 2005 or the date on which all conditions tothe obligations of the parties to close the transactions provided for in Section VI have beensatisfied.          D. “New Jersey Personal Business” shall mean any independent agency-produced policies issuedby Hartford for risks located in New Jersey with respect to the following lines of business:
 

 
               1. Homeowners insurance;               2. Dwelling fire insurance; or               3. Personal excess liability insurance     For the avoidance of doubt, New Jersey Personal Business does not include the AARP Business.          E. “Nonrenewal Date” shall mean the effective date set forth in the initial notices ofnonrenewal of the New Jersey Personal Business as shall be agreed by Hartford and Proformance.Hartford and Proformance acknowledge and agree that the Non-Renewal Date shall be no earlier thanone-hundred and twenty (120) days after the Closing Date unless an earlier date is agreed to inwriting by each of Hartford and Proformance.          F. “Nonrenewal Period” shall mean the one-year period commencing on the Nonrenewal Date andending on the first anniversary of the Nonrenewal Date.          G. “Person” shall mean any individual, company, corporation, estate, limited liabilitycompany, partnership, joint venture, association, joint stock company, trust, unincorporatedorganization or government or any agency or political subdivision thereof or other entity.          H. “Qualifying Insured” shall mean any policyholder that held any policy that is part of theNew Jersey Personal Business as of the Closing Date.          I. “Renewal Rights” shall mean Hartford’s right and obligation to solicit and issue renewalsof the New Jersey Personal Business.          J. “Prior Business” shall mean the New Jersey Personal Business issued prior to the NonrenewalDate and all endorsements issued on such business prior to and during the Nonrenewal Period.          K. “Renewed Business” shall mean the New Jersey Personal Business policies renewed or requiredto be renewed by Proformance under this Agreement or any other New Jersey homeowners, dwelling fireor personal umbrella excess liability insurance policies issued by Proformance to a QualifyingInsured. For the purpose of this Agreement policies renewed or issued by Proformance shallinclude, without limitation, any policies that are issued or renewed by:               (1) Proformance               (2) Any of Proformance’s affiliates; or               (3) Any other Person that has directly or indirectly acquired Proformance’s right, title orinterest in or to the Renewed Business.
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L. “Policywriting Information” shall mean copies of (1) the declarations pages for any policiesthat will be non-renewed and (2) Hartford’s policy inquiry sheets which contain information used byHartford to underwrite and price a policy, including named insured, address, coverage limits,deductible amount, specific policy endorsements and other rating information.II. Sale, Purchase and Renewal of the New Jersey Personal Business. Upon the terms andconditions of this Agreement, Hartford shall sell, assign, transfer, convey and deliver the RenewalRights to Proformance, and Proformance shall purchase, acquire, accept, assume and take assignmentand delivery of the Renewal Rights from Hartford.          A. On the Closing Date, Hartford shall cease issuing new New Jersey Personal Business policiesbut shall continue to renew in-force New Jersey Personal Business until the Non-Renewal Date.Furthermore, after the Closing Date and during the Nonrenewal Period, Hartford shall continue toissue endorsements in the ordinary course on the New Jersey Personal Business until such businesshas been non-renewed.          B. On or after the Closing Date, on behalf of Hartford, Proformance shall mail to each NewJersey Personal Business policyholder written notices of nonrenewal produced by Hartford, alongwith a Proformance policy that would offer the New Jersey Personal Business policyholders aguaranteed option to renew substantially similar replacement coverage with Proformance usingsubstantially similar policy forms, rates and rules as those provided by Hartford. Such noticesshall be sent at least thirty (30) days but no more than ninety (90) days before renewal of a NewJersey Personal Business policy. The Commissioner and both parties shall approve the form of allof such notices prior to mailing.          C. On or after the Closing Date, Hartford shall mail to each agent with New Jersey PersonalBusiness policies with Hartford written notices that:               1. Hartford is withdrawing from the New Jersey Personal Lines Business.               2. Hartford shall continue to write other lines of business in New Jersey.               3. Proformance shall offer a replacement policy for each New Jersey Personal Business policy.     The Commissioner and both parties shall approve the form of all of such notices prior tomailing.          D. Hartford shall retain all rights, debts, liabilities, and obligations related to the PriorBusiness, including, but not limited to, all premium, unpaid claims (whether reported orunreported) and all unearned premium reserves.
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          E. Proformance shall be solely responsible for all rights, debts, liabilities, and obligationsrelated to the Renewed Business, including the payment of renewal commissions to producers, and theissuance of renewal policies to New Jersey Personal Business policyholders.III. Obligations of the Parties          A. Payments by Proformance. Upon the terms and subject to the conditions of thisAgreement in consideration for the Renewal Rights, Proformance shall pay to Hartford the followingconsideration at the specified times, with all payments to be made by wire transfer of immediatelyavailable funds:               1. $150,000 at the Closing; and               2. A one-time payment equal to 5% of the written premium of the Renewed Business (the“Payment”). Proformance shall make the Payment within forty-five (45) days of the end of theNonrenewal Period and the actual date upon which Proformance makes the Payment in full to Hartfordshall be referred to as the Payment Date.          B. Proformance and Hartford shall               1. Cooperate fully with each other in the joint development of notices to affectedpolicyholders and agents of Hartford as described in Section II of this Agreement.               2. Each use their commercially reasonable efforts to obtain the Commissioner’s approval.          C. Proformance shall offer limited agency agreements to all active independent Hartford agentsthat write New Jersey Personal Business which agreement will permit these agents the continuationof ownership of the policy renewals of the New Jersey Personal Business, by the agent of record.          D. Hartford shall provide to Proformance:               1. By June 1, 2005 a list of Hartford’s then active independent agents that serve as agentsfor any New Jersey Personal Business, the status of each such agent, applicable commission ratesand, to the best of Hartford’s knowledge, the street address of the agent; and               2. Seventy-five (75) days prior to the first day of each month during the Nonrenewal Period,Policywriting Information on all policies that will be nonrenewed that month. In addition,Hartford shall notify Proformance within twenty (20) days of any endorsement or cancellationactivity that occurs after Policywriting Information is provided.          E. Non-Solicitation For two (2) years after the Non-Renewal Date Hartford shall not,directly or indirectly, solicit or aid others in the solicitation of New Jersey Personal
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Business policies, provided, however, that this provision shall not prevent Hartford from makinggeneral solicitations not specifically directed at New Jersey Personal Business policyholders wherethe solicitation by its nature cannot be conducted or distributed so as to exclude New JerseyPersonal Business policyholders, including without limitation, general solicitations on theinternet, television or in magazines and newspapers. The parties acknowledge that Hartford and itsagents and employees have other marketing relationships and employ other marketing distributionsystems through which New Jersey Personal Business policyholders may be indirectly solicited.Accordingly, Proformance agrees and acknowledges that Hartford and its agents and employees shallhave no liability for such solicitations and any such solicitations or policies of insurance soldto through such other means shall not violate the terms of this Agreement.     IV. Closing. Upon the terms and subject to the conditions set forth in thisAgreement, the Closing shall take place at the offices of Hartford (or at such other place as theparties may mutually agree) on the Closing Date. The Closing Date may be changed by mutualagreement of the parties.     V. Representations and Warranties          A. Hartford’s Representations With Respect to the New Jersey Personal Business.      To the best of its knowledge and in its best estimate, Hartford asserts the following withrespect to the New Jersey Personal Business:               1. As of March 31, 2005, the homeowner’s insurance portion of the New Jersey Personal Businessis comprised of approximately 7,963 homes. The Accident Year 2004 loss ratio (excluding AllocatedLoss Adjustment Expense) is approximately 35.9%.               2. As of March 31, 2005, the dwelling fire insurance portion of the New Jersey PersonalBusiness is comprised of approximately 837 homes. The Accident Year 2004 loss ratio (excludingAllocated Loss Adjustment Expense) is approximately 24.1%.               3. As of December 31, 2004, there are approximately 250 personal excess liability insurancepolices in the New Jersey Personal Business. The Accident Year 2004 loss ratio (excludingAllocated Loss Adjustment Expense) is approximately 0.00%          B. Further Warranties and Representation of Hartford.     Hartford represents and warrants to Proformance, knowing and intending that Proformance isrelying hereon in entering into the transactions contemplated herein, as follows:               1. Due Organization; Good Standing. Hartford is duly organized, validly existing andin good standing under the laws of its state of domicile and New Jersey except where failure to soqualify and be in good standing would not have a material adverse
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effect on the New Jersey Personal Business. Hartford has the corporate power and authorityand possesses all governmental and other permits, licenses and other authorizations necessary towrite the New Jersey Personal Business policies and to carry on the New Jersey Personal Business asnow conducted, except such permits, licenses and other authorizations the failure of which topossess would not have a material adverse effect on New Jersey Personal Business.               2. Corporate Authorization. Hartford has all requisite corporate power and authorityto enter into this Agreement, to perform its obligations hereunder and to consummate thetransactions contemplated hereby. The execution, delivery and performance of this Agreement andthe consummation of the transactions contemplated hereby have been duly authorized by all necessarycorporate actions on the part of Hartford.               3. No Violations or Breach. Except for the consent described in Section V(B)(4)below, to its knowledge, the execution and delivery of this Agreement and the consummation of thetransactions contemplated herein will not conflict with or result in a breach of any of the termsand provisions of any agreement, mortgage, lease, bond, note, debenture, guaranty, deed of trust orother agreement, instrument or arrangement to which Hartford is a party or by which its propertyis bound, or its certificates of incorporation, by-laws or other governing documents, or any law,administrative regulation or any order of any court or governmental agency or authority entered inany proceeding to which Hartford is a party or by which its property is bound, except for thoseconflicts or breaches which may have been waived or which would not result in a material adverseeffect on the New Jersey Personal Business.               4. Consents. Neither Hartford’s execution and delivery of this Agreement norHartford’s consummation of the transactions contemplated herein requires any governmental consent,permit, authorization or approval, or registration, filing or declaration with any governmentalauthority, except the approval of the Commissioner.               5. Good Title. Hartford has, and on the Closing Date will have, the right, subjectto the ownership rights of the independent agents in the policy expirations, to consummate thetransactions contemplated by this Agreement.               6. Compliance with Law, Suits and Proceedings. There are no violations, citations,fines, injunctions or penalties have been asserted against or imposed on Hartford, its propertiesor assets or with respect to the conduct of its businesses under any federal, state or local lawand none, to its knowledge, has been threatened except for those violations, citations, fines,injunctions or penalties which would not reasonably be expected to have a material adverse effecton the New Jersey Personal Business. There is no action, proceeding, investigation or inquirypending or, to its knowledge, threatened against or affecting Hartford, its properties or assets orthe conduct of its businesses, except for those actions, proceedings, investigations or inquirieswhich would not reasonably be expected to have a material adverse effect on the New Jersey PersonalBusiness.               7. Enforceability. Assuming this Agreement constitutes the valid and bindingagreement of Proformance, this Agreement constitutes the legal, valid and binding
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obligation of Hartford enforceable against Hartford in accordance with its terms subject tothe qualification that enforceability may be limited by:                    (a) Bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other laws ofgeneral applicability relating to or affecting creditors’ rights generally; and                    (b) General principles of equity.               8. No Other Representations or Warranties. Hartford acknowledges and agrees thatexcept for the representations and warranties of Proformance contained in this Agreement,Proformance, nor any other Person acting for it, is making or has made any other representation orwarranty, express or implied, in connection with this Agreement, or any aspect of the transactioncontemplated by this Agreement.          C. Representations and Warranties of Proformance     Proformance represents and warrants to Hartford, knowing and intending that Hartford isrelying hereon in entering into the transactions contemplated herein, as follows:               1. Due Organization; Good Standing. Proformance is a corporation duly organized andvalidly existing and in good standing under the laws of New Jersey. Proformance has the power andauthority and possesses all governmental and other permits, licenses and other authorizationsnecessary to transact homeowners, dwelling fire and personal excess liability insurance in theState of New Jersey and to carry on its business and operations as now conducted.               2. Corporate Authorization. Proformance has all requisite power and authority toenter into this Agreement, to perform its obligations hereunder and to consummate the transactionscontemplated hereby. The execution, delivery and performance of the Agreement and the consummationof the transactions contemplated hereby have been authorized by all necessary action on the part ofProformance.               3. No Violations or Breach. Except for the consent described in Section V(C)(4) totheir knowledge, the execution and delivery of the Agreement and the consummation of thetransactions contemplated herein will not conflict with or result in a breach of any of the termsand provisions of any agreement, mortgage, lease, bond, note, debenture, guaranty, deed of trust orother agreement, instrument or arrangement to which Proformance is a party or by which its propertyis bound, or any law, administrative regulation, or any order of any court or governmental agencyor authority entered in any proceeding to which Proformance is a party or by which its property isbound, except for those conflicts or breaches which may have been waived or which do not result ina material adverse effect on Proformance.               4. Consents. Neither Proformance’s execution and delivery of the Agreement norProformance’s consummation of the transactions contemplated herein requires any governmentalconsent, permit, authorization or approval, or registration, filing or declaration
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with any governmental authority, except the approval of the Commissioner.               5. Compliance with Law; Suits and Proceedings. No violations, citations, fines,injunctions or penalties have been asserted against or imposed on Proformance, its properties orassets or with respect to the conduct of its business under any federal, state or local law andnone, to its knowledge, have been threatened except for those violations, citations, fines,injunctions or penalties which would not have a material adverse effect on Proformance. There isno action, proceeding, investigation or inquiry pending or, to its knowledge, threatened against oraffecting Proformance , its properties or assets or the conduct of its business, except for thoseactions, proceedings, investigations or inquiries which would not have a material adverse effect onProformance.               6. Enforceability. Assuming this Agreement constitutes the valid and bindingagreement of Hartford, the Agreement constitute legal, valid and binding obligation of Proformanceenforceable against Proformance in accordance with its terms subject to the qualification thatenforceability may be limited by:                    (a) Bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other laws ofgeneral applicability relating to or affecting creditors’ rights generally; and                    (b) General principles of equity.               7.  No Guaranteed Renewals. Proformance acknowledges and agrees that:                    (a) Hartford nor any of its affiliates has the power or ability to require any insured or anybroker or agent to renew the New Jersey Personal Business or any insurance coverage providedthereunder, upon expiration or otherwise; and                    (b) Neither Hartford nor any other Person has made any representation or warranty or any otherpromise about the amount, if any, of the New Jersey Personal Business that Proformance will be ableto renew.               8. Taxes. Proformance has filed all Tax Returns and paid all Taxes shown thereon tobe due, if any, that are required to have been filed on or before the Closing Date with appropriatefederal, state, foreign, county and local governmental agencies or instrumentalities, except wherethe failure to do so would not have a material adverse effect. As of the date hereof, there arenot pending or, to the best knowledge of Proformance, threatened any audits, examinations,investigations or other proceedings in respect of Taxes or Tax matters. As used in this Agreement(a.) the term “Tax” (including, with correlative meaning, the term “Taxes”) includes all federal,state and local income, profits, franchise, gross receipts, environmental, custom duty, capitalstock, severances, stamp, payroll, withholding, excise, production, value added, occupancy andother taxes, duties or assessments of any nature whatsoever, together with all interest, penaltiesand additions imposed with respect to such amounts and any interest in respect of such penaltiesand additions, and (b.) the term “Tax Return” includes all returns and reports required to besupplied to a Tax authority relating to
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Taxes.               9. No Other Representations or Warranties. Proformance acknowledges and agrees thatexcept for the representations and warranties of Hartford contained in this Agreement, neitherHartford, nor any other Person acting for Hartford have made any other representation or warranty,express or implied, in connection with this Agreement or any aspect of the transaction contemplatedby this Agreement, including any representation or warranty with respect to the information orprojections delivered to the Proformance.     VI. Conditions Precedent to Obligations.          A. Conditions Precedent to Obligations of All Parties: The respective obligations ofthe parties under this Agreement, including, without limitation, a party’s obligation to close thetransaction contemplated by this Agreement, are subject to the satisfaction or waiver by allparties on or prior to the Closing Date of the following conditions set forth in Sections(VI)(A)(1) and (VI)(A)(2):               1. No Injunctions or Restraints. No preliminary or permanent injunction or ordershall be in effect that prevents or makes illegal the consummation of the transactions contemplatedhereby; provided, however, that the party invoking this condition shall have used all reasonableefforts to have any such injunction or order vacated.               2. Approval of the Commissioner. The parties shall have obtained the approval of theCommissioner.          B. Conditions Precedent to Obligations of Hartford. The obligations of Hartford underthis Agreement, including, without limitation, its obligation to close the transaction contemplatedby this Agreement, are further subject to the satisfaction or waiver on or prior to the ClosingDate of the following conditions:               1. Withdrawal. The Commissioner shall have granted a waiver to Hartford pursuant toN.J.A.C. 11:2-29.3(a) obviating the requirement that Hartford file a formal plan of withdrawal fromthe home, dwelling fire and personal excess liability insurance business in New Jersey inaccordance with N.J.A.C. 11:2-29.4.               2. Requirements Imposed by the Commissioner. Any terms and conditions that may beimposed on the transactions contemplated by this Agreement by the Commissioner shall be acceptableto Hartford in its sole discretion. The approval of the Commissioner shall, among other things,permit Hartford to:                    (a) Cease issuing new and renewal independent agent-produced New Jersey Personal Businesspolicies;                    (b) Commence issuance of notices of nonrenewal as of the Nonrenewal Date on terms acceptableto Hartford; and
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                    (C) Withdraw its rates, rules, and forms for such business.               3. Representations and Warranties. The representations and warranties of Proformanceset forth in this Agreement shall be true and correct in all material respects as of the ClosingDate.               4. Performance of Obligations. Proformance shall have performed in all materialrespects all obligations required to be performed under this Agreement on or prior to the ClosingDate.               5. There shall be no conditions imposed on Hartford pertaining to:                    (a) Any continuing financial obligation with regard to the Renewed Business for coverage onany New Jersey Personal Business policy during the time commencing on and following the firstpolicy period for which Proformance assumes coverage on the risk;                    (b) Hartford’s offering or renewing the AARP Business.                    (c) Hartford’s ability to write or continue to write all other lines of insurance in NewJersey for which it is currently licensed other than policies that would qualify as New JerseyPersonal Business.               6. Proformance:                    (a) Shall have a financial strength rating by A.M. Best Co. (“Best”) of “B (Fair)” or better;and                    (b) Shall not be under review by Best nor have a Best’s rating outlook of “negative.”          C. Conditions Precedent to Obligations of Proformance. The obligations of Proformanceunder this Agreement, including, without limitation, their obligation to close the transactioncontemplated by this Agreement, are further subject to the satisfaction or waiver on or prior tothe Closing Date of the following conditions:               1. Requirements Imposed by the Commissioner. Any terms and conditions that may beimposed on the transactions contemplated by this Agreement by the Commissioner shall be acceptableto Proformance in its sole discretion.               2. Representations and Warranties. The representations and warranties of Hartfordset forth in this Agreement shall be true and correct in all material respects as of the ClosingDate.               3. Performance of Obligations. Hartford shall have performed in all
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material respects all obligations required to be performed by it under this Agreement on orprior to the Closing Date.     VII. Termination.          A. Termination of Agreement Prior to Closing. This Agreement may be terminated at anytime prior to Closing:               1. By Hartford (provided that Hartford is not then in breach of any representation, warranty,covenant or other agreement contained herein) if there has been a material inaccuracy or a materialbreach on the part of Proformance of any representation, warranty, covenant, obligation or otherprovision of this Agreement which cannot be or has not been cured within ten (10) days afterwritten notice by Hartford to Proformance, of such breach, and such breach, individually or in theaggregate with other such breaches, would cause a condition of such terminating party’s obligationsunder Section VI(B) of this Agreement to be incapable of being satisfied; or               2. By Proformance (provided that Proformance is not then in breach of any representation,warranty, covenant or other agreement contained herein) if there has been a material inaccuracy ora material breach on the part of Hartford of any representation, warranty, covenant, obligation orother provision of this Agreement which cannot be or has not been cured within ten (10) days afterwritten notice by Proformance to Hartford, of such breach, and such breach, individually or in theaggregate with other such breaches, would cause a condition of such terminating party’s obligationsunder Section VI(C) of this Agreement to be incapable of being satisfied; or               3. By mutual written consent of the parties; or               4. By any party in writing, if the Closing has not occurred (other than through the failure ofany party seeking to terminate this Agreement to comply fully with its obligations under thisAgreement) on or before July 1, 2005 or such later date as the parties may agree upon in writing.          B. Effect of Termination. Each party’s right of termination under Section VII(A)above is in addition to any other rights it may have under this Agreement or otherwise, and theexercise of a right of termination will not be an election of remedies. If this Agreement isterminated pursuant to Section VII(A) above, all further obligations of the parties under thisAgreement shall terminate, except for:               1. The obligations under Section IX; and               2. Rights and obligations arising from any breach of this Agreement prior to such termination.     VIII. Survival of Representations and Warranties; Indemnification.
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          A. Survival of Representations and Warranties. All representations and warrantiesmade by the parties under this Agreement shall survive the Closing until three (3) months after thefirst anniversary of the Nonrenewal Date. The covenants and agreements contained in thisAgreement, to the extent that the foregoing by their express terms are to have effect or beperformed after Closing, shall survive Closing in accordance with their terms.          B. Indemnification Obligations of Hartford. Subject to the terms and conditions ofthis Section VIII, Hartford shall indemnify and hold Proformance harmless against any and alldamages, losses, liabilities and expenses (including, without limitation, reasonable attorneys’fees) (collectively “Damages”), incurred or suffered by Proformance resulting from or relating to:               1. Any material misrepresentation or material breach of any warranty of Hartford contained inthis Agreement;               2. Any material breach of any covenant of Hartford contained in this Agreement;               3. The Prior Business; or               4. Any and all actions, suits, demands, assessments, or judgments with respect to any claimarising out of or relating to the subject matter of the indemnification.          Provided, however, that the maximum amount for which Hartford shall be liable in the aggregateunder this Section VIII(B) shall not exceed seven hundred and fifty thousand dollars ($750,000)(“Hartford’s Indemnification Cap”). Notwithstanding the foregoing, the Hartford’s IndemnificationCap shall not apply to the indemnity provided under Section VIII (B) (3).          C. Indemnification Obligations of Proformance. Subject to the terms and conditions ofthis Section VIII(C), Proformance shall indemnify and hold Hartford harmless against any Damagesincurred or suffered by Hartford resulting from or relating to:               1. Any material misrepresentation or material breach of any warranty of Proformance containedin this Agreement;               2. Any material breach of any covenant of Proformance contained in this Agreement;               3. The Renewed Business; or               4. Any and all actions, suits, demands, assessments, or judgments with respect to any claimarising out of or relating to the subject matter of the indemnification.
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          Provided, however, that maximum amount for which Proformance shall be liable in the aggregateunder this Section VIII(C) shall not exceed seven hundred and fifty thousand dollars ($750,000)(“Proformance’s Indemnification Cap”). Notwithstanding the foregoing, Proformance’sIndemnification Cap shall not apply to the indemnity provided under Section VIII(C) (3).          D. Procedures for Indemnification Claims.               1. The party seeking indemnification under Section VIII (the “Indemnified Party”) shall giveprompt notice (in accordance with Section IX(D)) to the party against whom indemnity is sought (the“Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action orproceeding in respect of which indemnity may be sought under Section VIII (the “Claims”). Suchnotice referred to in the preceding sentence shall state the relevant facts and include therewithrelevant documents and a statement in reasonable detail as to the basis for the indemnificationsought. The failure by any Indemnified Party so to notify the Indemnifying Party shall not relieveany Indemnifying Party from any liability which it may have to such Indemnified Party with respectto any Claims made pursuant to this Section VIII, except to the extent such failure shall actuallyprejudice an Indemnifying Party.               2. Upon receipt of notice from the Indemnified Party pursuant to Section IX(D), theIndemnifying Party will have the right to, subject to the provisions of Section VIII(D)(3), assumethe defense and control of such Claims. In the event the Indemnifying Party assumes the defense ofa Claim, the Indemnified Party shall have the right but not the obligation to participate in thedefense of such Third Party Claim with their own counsel and at their own expense (except asprovided in VIII(D)(3)) and the Indemnifying Party will cooperate with the Indemnified Party. Anyelection by an Indemnifying Party not to assume the defense of a Claim must be received by theIndemnified Party reasonably promptly following its receipt of the Indemnified Party’s noticedelivered pursuant to Section IX(D). If the Indemnifying Party elects to assume the defense of aClaim, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party;shall take all steps necessary in the defense or settlement of such Claims; and shall at all timesdiligently and promptly pursue the resolution of such Claims. The Indemnified Party shall, andshall cause each of their affiliates and representatives to, cooperate fully with the IndemnifyingParty in the defense of any Claim defended by the Indemnifying Party.               3. The Indemnifying Party shall not be liable for any settlement of a Claim effected withoutits consent (such consent not to be unreasonably withheld). No Indemnifying Party shall, withoutthe written consent of the Indemnified Party (such consent not to be unreasonably withheld), effectany settlement of any pending or threatened proceeding in respect of which any Indemnified Party isa party and indemnification is being sought hereunder by such Indemnified Party, unless suchsettlement:                    (a) Includes an unconditional release of such Indemnified Party, in form and substancereasonably satisfactory to such Indemnified Party, from all liability on claims that are thesubject matter of such settlement; and
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                    (b) Does not include any statement as to or any admission of fault, culpability or a failureto act by or on behalf of any Indemnified Party.               4. All indemnification payments payable hereunder shall be reduced by the amount of insuranceproceeds received by, or any tax benefits inuring to the benefit of, the Indemnified Party as aresult of the loss for which the Indemnified Party is seeking reimbursement.               5. Without prejudice to the rights of the parties under this Section VIII, the parties heretoexpressly acknowledge that the provisions of this Section VIII shall be the sole and exclusiveremedy with respect to any Damages arising from the matters described in Section VIII of thisAgreement or any other provisions hereof.     IX. Miscellaneous.          A. Assurance of Further Action. From time to time after Closing, each party, at itsown reasonable expense, shall execute and deliver, or cause to be executed and delivered, to theother parties such further documents that may be reasonably necessary and take such otherreasonably appropriate action as the other parties may reasonably request in order to moreeffectively consummate the transactions contemplated hereby.          B. Access, Information, and Documents. Until forty-five (45) days after the PaymentDate, during reasonable hours:               1. Hartford shall make available to each of Proformance or afford to them and their agentsand representatives (including, but not limited to, accountants, lawyers, and appraisers)reasonable access, during normal working hours to all of the books, records and other documents ofHartford and its affiliates relating to the New Jersey Personal Business; and               2. Proformance shall make available to Hartford or afford to them and their agents andrepresentatives (including, but not limited to, accountants, lawyers, and appraisers) reasonableaccess, during normal working hours to all books, records and other documents of Proformance andtheir respective affiliates relating to the Renewed Business, including, without limitation allsuch information as reasonably necessary for Hartford to audit the calculation of the Payment.Additionally, on or prior to the Payment Date Proformance shall prepare and deliver to Hartford acalculation of the Payment, together with work papers in reasonable detail setting forth thecalculation of the Payment.          C. Amendment. The parties hereto may by written agreement signed by each of theparties hereto amend, supplement or modify this Agreement or any provision of this Agreement.          D. Notices. Any notice or other communication required or permitted hereunder shallbe in writing and shall be delivered personally, sent by facsimile transmission
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(with immediate confirmation thereafter) or sent by certified, registered or express mail,postage prepaid, or by a nationally recognized overnight courier service, marked for overnightdelivery. Any such notice shall be deemed given when so received and shall be addressed:   If to Hartford: Hartford Fire Insurance Company