Common use of Claims Notice Clause in Contracts

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 (an “Indemnitee”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII.

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b8.4(b), any Buyer Indemnitee, Digital Colony Indemnitee or Seller Indemnitee other indemnified party who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 8.2 (an “Indemnitee”) LA_LAN01:362972.20 shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, promptly after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually materially prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such material information and documents as the Indemnitee has in its possession regarding such claim and all material pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and incurred, including any limitations set forth in this Article VII VIII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day 30-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and then the Indemnifying Party shall be deemed not to have accepted the Loss and the parties Parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then (x) any dispute as to the value of the Loss (if the Indemnifying Party has agreed in writing that such a Loss exists) will be resolved by an independent valuation firm of national standing (the “Valuation Firm”) jointly selected by the Indemnitee and the Indemnifying Party (and, if the Parties are unable to agree upon a Valuation Firm, then the Indemnitee and the Indemnifying Party shall each select an independent valuation firm of national standing, and the two (2) valuation firms so selected shall select a third (3rd) independent valuation firm of national standing to act as the Valuation Firm) and (y) any other dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.119.11. The determination of the dispute by the Valuation Firm shall be final and binding on the Parties hereto, except in the case of manifest error or fraud. The costs of the Valuation Firm shall be allocated between the Indemnitee and the Indemnifying Party by the Valuation Firm in proportion to the extent that either of the Indemnitee or the Indemnifying Party did not prevail on the amount of the disputed Loss as submitted to the Valuation Firm. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII VIII that apply to such Loss) within the thirty (30)-day 30-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VIIVIII.

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), If any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 (an the “Indemnitee”) shall give written receives notice of any claim or the commencement of any action or proceeding with respect to each Person from whom such which any Party is obligated to provide indemnification is being claimed (an the “Indemnifying Party”) andpursuant to Section 8.2 (or would be required to provide indemnification if the provisions of Section 8.3 did not apply), if a Buyer the Indemnitee is such Indemnitee, shall promptly deliver to the Escrow Agent Indemnifying Party a written notice (the “Claims Notice”) describing such matter in accordance with reasonable detail, including the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge estimated amount of the factLosses that have been or may be sustained (to the extent that they may be estimated), event or circumstances the facts giving rise to the claim for indemnification hereunder and a reference to the Lossprovision of this Agreement upon which such claim is made, in each case to the extent practicable. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent that the failure or delay adversely affects the defense of such Indemnifying Party is actually prejudiced claim by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such LossParty. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemniteemay, subject to the other provisions of this Section 8.4, settle, compromise or defend, at such limitationsIndemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any such matter involving the asserted liability of the Indemnitee in respect of a third-party claim. If the Indemnifying Party does not agree shall elect to so conduct the payment of the Loss within defense with respect to such thirty (30)-day periodasserted liability, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andit shall, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If after notice of the dispute third-party claim is not resolved through delivered by the Indemnitee to the Indemnifying Party, notify the Indemnitee of its intention to do so, and the Indemnitee shall reasonably cooperate, at the request and reasonable expense of the Indemnifying Party, in the defense against such negotiationsasserted liability; provided, then that no settlement or compromise of any dispute (including as to whether a Loss exists) third-party claim shall be resolved in accordance made without the prior written consent of the Indemnitee, except where such settlement or compromise involves only the payment of money and only to the extent that such money is paid by or on behalf of the Indemnifying Party. The Indemnifying Party shall not be released from any obligation to indemnify the Indemnitee hereunder with Section 10.11respect to such asserted claim without the prior written consent of the Indemnitee, unless the Indemnifying Party shall deliver to the Indemnitee a duly executed agreement settling or compromising such claim with no monetary liability to, or injunctive relief against, or other obligation of, the Indemnitee. If the Indemnifying Party agrees assumes the defense of a claim as provided for in this Section 8.4, the Indemnitee shall have the right to participate in, but not control, at its own expense, the defense, compromise or settlement of any such claim; provided, however, that if the Indemnitee shall reasonably determine, upon the advice of counsel, that the Indemnitee and the Indemnifying Party shall have conflicting or different claims or defenses, then the Indemnifying Party shall not have control of such conflicting or different claims or defenses and the Indemnitee shall be entitled to appoint a separate counsel (but only one (1) counsel for such Indemnitee and any related Indemnitees) for such claims and defenses, at the reasonable cost and expense of the Indemnifying Party. If the Indemnifying Party shall choose to defend any claim, the Indemnitee shall make available to the payment Indemnifying Party any books, records or other documents within its direct or indirect control and that the Indemnifying Party considers necessary or reasonably desirable for the defense of such matter, and shall cooperate in all reasonable ways with, and make its employees and advisors reasonably available or otherwise render reasonable assistance to, the Indemnitor and its agents. The Indemnitee shall not file any papers or consent to the entry of any judgment or enter into any settlement with respect to any claim for which any Party is obligated to provide indemnification pursuant to this Article VIII without the prior written consent of the Loss (subject Indemnifying Party. Whether or not the Indemnifying Party has assumed the defense of a claim, the Indemnifying Party will not be obligated to indemnify the Indemnitee hereunder with respect to any limitations set forth in this Article VII that apply settlement entered into or any judgment consented to such Loss) within without the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VIIIndemnifying Party’s prior written consent.

Claims Notice. (a) Except with respect In the event that either Purchaser or LLANY or one of the Sellers wishes to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make assert a claim for indemnification for hereunder (including, but not limited to, claims arising from a claim or demand made, or an action, proceeding or investigation instituted, by any Person not a party to this Agreement that may result in a Loss pursuant to Section 7.2 for which indemnification is claimed under this Article IX (an “Indemnitee”a "Third Party Claim")), such party seeking indemnification (the "Indemnified Party") shall give written notice (a "Claims Notice") to each Person from whom such indemnification is being claimed the other party (an “the "Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, "). Such Claims Notice shall be delivered to the Escrow Agent Indemnifying Party as promptly as practicable, specifying in accordance with detail the Escrow Agreement, promptlyfacts constituting the basis for, and in any event no later than five (5) Business Daysthe amount of, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Lossasserted. The failure by any Indemnified Party to make timely delivery of such written notice shall not affect notify the Indemnifying Party’s Party as promptly as practicable shall relieve any Indemnifying Party from its indemnification obligations hereunder, except only to the extent such Indemnifying failure or other actions taken by the Indemnified Party is actually prejudiced by failure in response to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall actually prejudice an Indemnifying Party; provided however, that notwithstanding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The foregoing, an Indemnifying Party shall have no obligations to indemnify an Indemnified Party if a period of thirty (30) days after receipt Claims Notice containing the information specified above is not received by the Indemnifying Party of such notice and such evidence to agree prior to the payment termination of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent applicable periods described in accordance with the Escrow Agreement, Sections 8.01(a) and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII8.01(c).

Claims Notice. (a) Except with respect to Third In the event that any Purchaser Indemnified Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make Indemnified Party determines to assert a claim for indemnification for hereunder arising from, based on or relating to a claim or demand made, or an Action or investigation instituted, by any Person not either a party to this Agreement or an Affiliate of a party to this Agreement that may result in a Loss pursuant to Section 7.2 for which indemnification may be claimed under this Article X (an a “IndemniteeThird Party Claim”), such party seeking indemnification (the “Indemnified Party”) shall shall, as promptly as practicable after making such determination, give written notice (a “Claims Notice”) to each Person from whom such indemnification is being claimed the other party (an the “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent ). Such Claims Notice shall specify in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except reasonable detail to the extent such practicable, based on then available information, the facts constituting the basis for, and a good faith estimate of the amount of, the claim asserted; provided, however, that the failure by any Indemnified Party to notify the Indemnifying Party as promptly as practicable shall not relieve the Indemnifying Party of its indemnification obligations except and only to the extent that the Indemnifying Party is actually prejudiced by failure to give such noticefailure. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The An Indemnifying Party shall have no obligation whatsoever to indemnify an Indemnified Party if a period of thirty (30) days after receipt Claims Notice containing the information specified above is not received by the Indemnifying Party of such notice and such evidence to agree prior to the payment termination of the Loss to the Indemniteeapplicable periods described in Section 9.1; provided, subject however, that if, prior to such limitations. If applicable date, a party hereto shall have notified the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent other party hereto in good faith in accordance with the Escrow Agreementrequirements of this Section 10.2(a) of a claim for indemnification under this Article X (whether or not formal legal action shall have been commenced based upon such claim), and the Indemnifying Party such claim shall continue to be deemed not subject to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved indemnification in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII X notwithstanding the passing of any such applicable date. The parties acknowledge and agree that apply to such Lossthe indemnification claims under clauses (i) within and (iii) of Section 10.1(a) and clauses (i) and (iii) of Section 10.1(b) shall survive the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to Closing and continue in perpetuity or until the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VIIlast date permitted by Applicable Law.

Claims Notice. (a) Except with respect Any claim for indemnification that Newco wishes to Third Party Claims covered assert hereunder shall be asserted by Section 7.4(b)Purchaser on behalf of Newco. In the event that either Purchaser, any Buyer Indemnitee Newco or Seller Indemnitee who is entitled to, and wishes to, make to assert a claim for indemnification for a Loss pursuant to Section 7.2 hereunder, such party seeking indemnification (an “Indemnitee”the "Indemnified Party") shall give deliver written notice (a "Claims Notice") to each Person from whom such indemnification is being claimed the other party (an “the "Indemnifying Party”") and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay claim becomes known to the Indemnitee Indemnified Party, specifying the facts constituting the basis for, and the amount (if known) of, the claim asserted. Failure to deliver a Claims Notice with respect to a claim in a timely manner as specified in the preceding sentence shall not be deemed a waiver of the Indemnified Party's right to indemnification hereunder for Losses in connection with such claim, but the amount of reimbursement to which the Loss that Indemnified Party is payable pursuant toentitled shall be reduced by the amount, and subject if any, by which the Indemnified Party's Losses would have been less had such Claims Notice been timely delivered; PROVIDED, HOWEVER, that, notwithstanding the foregoing, the failure to deliver a Claims Notice with respect to a claim within twenty (20) Business Days of the limitations set forth in, this Article VIIIndemnified Party's receipt of written notice of such claim shall be deemed a waiver of the Indemnified Party's right to indemnification hereunder for Losses in connection with such claim.

Claims Notice. Promptly after receipt by the Buyer of notice of any ------------- demand, claim or circumstances that, with or without the lapse of time, would give rise to a claim or the commencement (aor threatened commencement) Except with respect of any action, proceeding or investigation (an "Asserted Liability") that may result in a Loss, the Buyer shall give notice thereof (the "Claims Notice") to Third Party the Member Representative for indemnification pursuant to Sections 8.2 hereof. Delivery of the Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled toNotice to the Member Representative shall be deemed to be notice to all the Members. The Claims Notice shall describe the Asserted Liability in reasonable detail, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 shall indicate the amount (an “Indemnitee”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) andestimated, if a Buyer Indemnitee is such Indemnitee, necessary) of the Loss that has been or may be suffered by the Buyer. The Members shall pay to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding Buyer the amount of the Loss that it asserts it has sustained or incurred stated in the Claims Notice within 30 days ("Claims Notice Period") of receipt of the Claims Notice; provided, however, if -------- ------- the Member Representative gives written notice ("Dispute Notice") prior to the expiration of the Claims Notice Period disputing the amount of such Loss, the Buyer and any limitations set forth in this Article VII that apply the Member Representative shall have 30 days ("Dispute Notice Period") from receipt by the Buyer of the Dispute Notice to reach agreement as to the amount of such Loss. The Indemnifying Party shall If at the end of the Dispute Notice Period, the Buyer and Member Representative have a period not reached agreement as to the amount of thirty (30) days after receipt Loss to be indemnified by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day periodMembers, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII9.5 hereof.

Claims Notice. Each party hereto (aan "Indemnified Party") Except with respect to Third Party Claims covered by Section 7.4(bshall, promptly upon becoming aware of any event or circumstance (an "Indemnifiable Event"), any Buyer Indemnitee which, in his or Seller Indemnitee who is entitled toits reasonable judgment, and wishes to, make a claim for indemnification for may result in a Loss pursuant to Section 7.2 for which the Indemnified Party could assert a right of indemnification against any other party (an “Indemnitee”or parties) shall give written notice to each Person from whom such indemnification is being claimed hereto (an “the "Indemnifying Party”") andunder this Article 8, if a Buyer Indemnitee is such Indemnitee, give notice thereof (the "Claims Notice") to the Escrow Agent in accordance with Indemnifying Party (but the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge obligations of the fact, event or circumstances giving rise to Indemnifying Party under this Article 8 shall not be impaired by the claim for the Loss. The Indemnified Party's failure to make timely delivery of give such written notice shall not affect the Indemnifying Party’s obligations hereundernotice, except to the extent such Indemnifying Party is that said failure actually prejudiced by failure to give such notice. Together with such written notice, prejudices the Indemnitee shall provide rights of the Indemnifying Party). The Claims Notice shall describe the Indemnifiable Event in reasonable detail, shall indicate whether the Indemnifiable Event involves a "Third Party with such information Claim" (defined below), and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall indicate the amount (estimated, if necessary) of the Loss that it asserts it has sustained been or incurred and any limitations set forth in this Article VII that apply to may be suffered by the Indemnified Party. In such Loss. The event, the Indemnifying Party shall have a period of thirty shall, within fifteen (3015) business days after receipt by of the Indemnifying Claims Notice, give notice to the Indemnified Party of such notice and such evidence whether he or it intends to agree to dispute the payment of claim described in the Loss to Claims Notice (the Indemnitee, subject to such limitations"Response Notice"). If the Indemnifying Party does not agree to timely disputes the payment of the Loss within such thirty (30)-day periodClaims Notice as provided above, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andshall, if for a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed period of not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within more than fifteen (15) business days thereafter. If after receipt of the Response Notice (or less, if the nature of the Indemnifiable Event so requires), seek out a negotiated settlement of the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees and shall refrain during that period from commencing any judicial proceeding or other action to the payment of the Loss (subject to any limitations set forth in enforce this Article VII that apply 8. If, despite their good faith negotiations, the parties are unable to such Loss) resolve the dispute within the thirty aforesaid period (30)-day period described aboveor if the Indemnifying Party fails to timely give the Response Notice), then the Indemnified Party shall be free to exercise all rights and remedies available to him or it shallhereunder, within ten (10) Business Days after such agreement, pay at law in equity or otherwise to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, enforce his or its rights under this Article VII8. As used herein, "Third Party Claim" means any demand, claim or circumstance which, with the lapse of time or otherwise, would give rise to a claim or the commencement (or threatened commencement) of any action, proceeding or investigation against the Indemnified Party by any other person.

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), Whenever any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim shall arise for indemnification for a Loss pursuant to Section 7.2 hereunder, the person seeking indemnification (an the “IndemniteeIndemnified Party”) shall give written notice to each Person promptly notify the party from whom such indemnification is being claimed sought in writing (an the “Indemnifying Party”) of the claim (“Claim Notice”) and, when known, the facts constituting the basis for such claim, including, if a Buyer Indemnitee is such Indemniteeknown, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge amount or an estimate of the fact, event or circumstances giving rise to amount of the claim for the Lossliability arising therefrom. The failure of the Indemnified Party to make timely delivery of such written give the Indemnifying Party prompt notice as provided herein shall not affect relieve the Indemnifying Party’s Party of any of its obligations hereunderunder this Section 9, except to the extent such that the Indemnifying Party is actually materially prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Lossfailure. The Indemnifying Party shall have a period of thirty (30) days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing (but reasonably satisfactory to the Indemnified Party) and at its own expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Indemnified Party may participate in such settlement or defense through counsel chosen by such Indemnified Party and the fees and expenses of such counsel shall be borne by such Indemnified Party unless the employment thereof has been specifically authorized by the Indemnifying Party in writing, the Indemnified Party reasonably concludes that there exists a conflict of interest between the interests of the Indemnified Party and the Indemnifying Party, or the Indemnifying Party has after a reasonable time failed to employ counsel to assume or to continue to maintain such defense, in each of which events the Indemnified Party may retain counsel which shall be reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party shall pay the reasonable fees and expenses of such notice counsel for the Indemnified Party (but in no event shall the Indemnifying Party be obligated to pay fees and expenses of more than one firm for all Indemnified Parties). So long as the Indemnifying Party is reasonably contesting any such evidence to agree to claim in good faith, the payment Indemnified Party shall not pay or settle any such claim without the consent of the Loss to the Indemnitee, subject to such limitationsIndemnifying Party. If the Indemnifying Party does not agree to notify the payment Indemnified Party within thirty (30) days after the receipt of the Loss within Indemnified Party’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof (or does not fulfill its commitment to undertake such thirty (30)-day perioddefense), the Indemnified Party shall have the right to contest, settle or compromise the claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnifying Party shall simultaneously deliver a notice to not, except with the consent of the Indemnified Party and, if a Seller is such Indemnifying Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the Escrow Agent in accordance giving by the person asserting such claim to all Indemnified Parties (i.e., GENAERA Indemnified Parties or MACROCHEM Indemnified Parties, as the case may be) an unconditional release from all liability with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply respect to such Loss) within claim. Notwithstanding the thirty (30)-day period described aboveforegoing, then it shallGENAERA shall have the right, within ten (10) Business Days after such agreementin its sole discretion and at its expense, pay to assume the Indemnitee investigation, defense and settlement of any claim involving the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VIISubject IP.

Claims Notice. Each party hereto (aan "Indemnified Party") Except with respect to Third Party Claims covered by Section 7.4(b)shall, promptly upon becoming aware of any Buyer Indemnitee event or Seller Indemnitee who is entitled tocircumstance (an "Indemnifiable Event") which, and wishes toin his or its reasonable judgment, make a claim for indemnification for may result in a Loss pursuant to Section 7.2 for which the Indemnified Party could assert a right of indemnification against any other party (an “Indemnitee”or parties) shall give written notice to each Person from whom such indemnification is being claimed hereto (an “the "Indemnifying Party”") andunder this Article 8, if a Buyer Indemnitee is such Indemnitee, give notice thereof (the "Claims Notice") to the Escrow Agent in accordance with Indemnifying Party (but the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge obligations of the fact, event or circumstances giving rise to Indemnifying Party under this Article 8 shall not be impaired by the claim for the Loss. The Indemnified Party's failure to make timely delivery of give such written notice shall not affect the Indemnifying Party’s obligations hereundernotice, except to the extent such Indemnifying Party is that said failure actually prejudiced by failure to give such notice. Together with such written notice, prejudices the Indemnitee shall provide rights of the Indemnifying Party). The Claims Notice shall describe the Indemnifiable Event in reasonable detail, shall indicate whether the Indemnifiable Event involves a "Third Party with such information Claim" (defined below), and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall indicate the amount (estimated, if necessary) of the Loss that it asserts it has sustained been or incurred and any limitations set forth in this Article VII that apply to may be suffered by the Indemnified Party. In such Loss. The event, the Indemnifying Party shall have a period of thirty shall, within fifteen (3015) business days after receipt by of the Indemnifying Claims Notice, give notice to the Indemnified Party of such notice and such evidence whether he or it intends to agree to dispute the payment of claim described in the Loss to Claims Notice (the Indemnitee, subject to such limitations"Response Notice"). If the Indemnifying Party does not agree to timely disputes the payment of the Loss within such thirty (30)-day periodClaims Notice as provided above, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andshall, if for a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed period of not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within more than fifteen (15) business days thereafter. If after receipt of the Response Notice (or less, if the nature of the Indemnifiable Event so requires), seek out a negotiated settlement of the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees and shall refrain during that period from commencing any judicial proceeding or other action to the payment of the Loss (subject to any limitations set forth in enforce this Article VII that apply to such Loss) within the thirty (30)-day period described above8. If, then it shalldespite their good faith negotiations, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII.the

Claims Notice. Each party hereto (aan "Indemnified Party") Except with respect to Third Party Claims covered by Section 7.4(b)shall, promptly upon becoming aware of any Buyer Indemnitee event or Seller Indemnitee who is entitled tocircumstance (an "Indemnifiable Event") which, and wishes toin his, make a claim for indemnification for her or its reasonable judgment, may result in a Loss pursuant to Section 7.2 for which the Indemnified Party could assert a right of indemnification against any other party (an “Indemnitee”or parties) shall give written notice to each Person from whom such indemnification is being claimed hereto (an “the "Indemnifying Party”") andunder this Article 9, if a Buyer Indemnitee is such Indemnitee, give notice thereof (the "Claims Notice") to the Escrow Agent in accordance with Indemnifying Party (but the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge obligations of the fact, event or circumstances giving rise to Indemnifying Party under this Article 9 shall not be impaired by the claim for the Loss. The Indemnified Party's failure to make timely delivery of give such written notice shall not affect the Indemnifying Party’s obligations hereundernotice, except to the extent such Indemnifying Party is that said failure actually prejudiced by failure to give such notice. Together with such written notice, prejudices the Indemnitee shall provide rights of the Indemnifying Party). The Claims Notice shall describe the Indemnifiable Event in reasonable detail, shall indicate whether the Indemnifiable Event involves a "Third Party with such information Claim" (defined below), and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall indicate the amount (estimated, if necessary) of the Loss that it asserts it has sustained been or incurred and any limitations set forth in this Article VII that apply to may be suffered by the Indemnified Party. In such Loss. The event, the Indemnifying Party shall have a period of thirty shall, within fifteen (3015) business days after receipt by of the Indemnifying Claims Notice, give notice to the Indemnified Party of such notice and such evidence whether he or it intends to agree to dispute the payment of claim described in the Loss to Claims Notice (the Indemnitee, subject to such limitations"Response Notice"). If the Indemnifying Party does not agree to timely disputes the payment of the Loss within such thirty (30)-day periodClaims Notice as provided above, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andshall, if for a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed period of not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within more than fifteen (15) business days thereafter. If after receipt of the Response Notice (or less, if the nature of the Indemnifiable Event so requires), seek out a negotiated settlement of the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII that apply to such Loss) within the thirty (30)-day period described above, then it and shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VII.

Claims Notice. Each party hereto (aan "Indemnified Party") Except with respect to Third Party Claims covered by Section 7.4(b)shall, promptly upon becoming aware of any Buyer Indemnitee event or Seller Indemnitee who is entitled tocircumstance (an "Indemnifiable Event") which, and wishes toin his, make a claim for indemnification for her or its reasonable judgment, may result in a Loss pursuant to Section 7.2 for which the Indemnified Party could assert a right of indemnification against any other party (an “Indemnitee”or parties) shall give written notice to each Person from whom such indemnification is being claimed hereto (an “the "Indemnifying Party”") andunder this Article 6, if a Buyer Indemnitee is such Indemnitee, give notice thereof (the "Claims Notice") to the Escrow Agent in accordance with Indemnifying Party (but the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge obligations of the fact, event or circumstances giving rise to Indemnifying Party under this Article 9 shall not be impaired by the claim for the Loss. The Indemnified Party's failure to make timely delivery of give such written notice shall not affect the Indemnifying Party’s obligations hereundernotice, except to the extent such Indemnifying Party is that said failure actually prejudiced by failure to give such notice. Together with such written notice, prejudices the Indemnitee shall provide rights of the Indemnifying Party). The Claims Notice shall describe the Indemnifiable Event in reasonable detail, shall indicate whether the Indemnifiable Event involves a "Third Party with such information Claim" (defined below), and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding shall indicate the amount (estimated, if necessary) of the Loss that it asserts it has sustained been or incurred and any limitations set forth in this Article VII that apply to may be suffered by the Indemnified Party. In such Loss. The event, the Indemnifying Party shall have a period of thirty shall, within fifteen (3015) business days after receipt by of the Indemnifying Claims Notice, give notice to the Indemnified Party of such notice and such evidence whether he or it intends to agree to dispute the payment of claim described in the Loss to Claims Notice (the Indemnitee, subject to such limitations"Response Notice"). If the Indemnifying Party does not agree to timely disputes the payment of the Loss within such thirty (30)-day periodClaims Notice as provided above, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andshall, if for a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed period of not to have accepted the Loss and the parties shall negotiate in good faith to seek a resolution of such dispute within more than fifteen (15) business days thereafter. If after receipt of the Response Notice (or less, if the nature of the Indemnifiable Event so requires), seek out a negotiated settlement of the dispute is not resolved through such negotiations, then any dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.11. If the Indemnifying Party agrees and shall refrain during that period from commencing any judicial proceeding or other action to the payment of the Loss (subject to any limitations set forth in enforce this Article VII that apply 6. If, despite their good faith negotiations, the parties are unable to such Loss) resolve the dispute within the thirty aforesaid period (30)-day period described aboveor if the Indemnifying Party fails to timely give the Response Notice), then the Indemnified Party shall be free to exercise all rights and remedies available to him or it shallhereunder, within ten (10) Business Days after such agreement, pay at law in equity or otherwise to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, enforce his or its rights under this Article VII6. As used herein, "Third Party Claim" means any demand, claim or circumstance which, with the lapse of time or otherwise, would give rise to a claim or the commencement (or threatened commencement) of any action, proceeding or investigation against the Indemnified Party by any other person.

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b), any Buyer Indemnitee or Seller Indemnitee who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 (an “Indemnitee”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, Subject to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such information and documents as the Indemnitee has in its possession regarding such claim and all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and any limitations set forth in this Article VII that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party andIX, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and the Indemnifying Party shall be deemed not to have accepted the Loss and the parties shall negotiate any Buyer Indemnitee believes in good faith that it has a claim for indemnification pursuant to seek Section 9.3 (a resolution “Buyer Claim”), then Buyer shall, as soon as reasonably practicable after it becomes aware of such dispute within fifteen Buyer Claim, notify Seller of such Buyer Claim by means of a written notice describing the Buyer Claim in reasonable detail and setting forth Buyer’s good faith calculation of the Losses incurred or that may be incurred by the applicable Buyer Indemnitee with respect thereto (15or good faith estimate thereof, in the event amount cannot be reasonably determined at the time) days thereafter(a “Buyer Claim Notice” and, together with a Claims Notice, a “Notice”). If No delay in or failure to give a Claims Notice by Buyer to Seller pursuant to this Section 9.8(b)(i) will adversely affect any of the dispute is not resolved through such negotiationsother rights or remedies that Buyer has under this Agreement, then any dispute (including as or alter or relieve Seller of its obligation to whether a Loss exists) shall be resolved in accordance with Section 10.11. If indemnify the Indemnifying Party agrees applicable Buyer Indemnitee, except and only to the payment extent that Seller is materially prejudiced thereby. If, by the 30th day following receipt by Seller of a Buyer Claim Notice (the Loss (subject to any limitations set forth “Dispute Period”), Buyer has not received from Seller notice in this Article VII writing that apply to such Loss) within the thirty (30)-day period described above, then it shall, within ten (10) Business Days after such agreement, pay Seller objects to the Indemnitee Buyer Claim (or the amount of the Loss that is payable pursuant to, and subject to the limitations Losses set forth intherein) asserted in such Buyer Claim Notice (a “Dispute Notice”), this Article VII.then then the amount of Losses alleged in such Buyer Claims Notice will be conclusively deemed to be 59

Claims Notice. (a) Except with respect to Third Party Claims covered by Section 7.4(b6.4(b), any Buyer Indemnitee, Digital Colony Indemnitee or Seller Indemnitee other indemnified party who is entitled to, and wishes to, make a claim for indemnification for a Loss pursuant to Section 7.2 6.2 (an “Indemnitee”) shall give written notice to each Person from whom such indemnification is being claimed (an “Indemnifying Party”) and, if a Buyer Indemnitee is such Indemnitee, to the Escrow Agent in accordance with the Escrow Agreement, promptly, and in any event no later than five (5) Business Days, promptly after it acquires knowledge of the fact, event or circumstances giving rise to the claim for the Loss. The failure to make timely delivery of such written notice shall not affect the Indemnifying Party’s obligations hereunder, except to the extent such Indemnifying Party is actually materially prejudiced by failure to give such notice. Together with such written notice, the Indemnitee shall provide the Indemnifying Party with such material information and documents as the Indemnitee has in its possession regarding such claim and all material pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred and incurred, including any limitations set forth in this Article VII VI that apply to such Loss. The Indemnifying Party shall have a period of thirty (30) days after receipt by the Indemnifying Party of such notice and such evidence to agree to the payment of the Loss to the Indemnitee, subject to such limitations. If the Indemnifying Party does not agree to the payment of the Loss within such thirty (30)-day 30-day period, the Indemnifying Party shall simultaneously deliver a notice to the Indemnified Party and, if a Seller is such Indemnifying Party, to the Escrow Agent in accordance with the Escrow Agreement, and then the Indemnifying Party shall be deemed not to have accepted the Loss and the parties Parties shall negotiate in good faith to seek a resolution of such dispute within fifteen (15) days thereafter. If the dispute is not resolved through such negotiations, then (x) any dispute as to the value of the Loss (if the Indemnifying Party has agreed in writing that such a Loss exists) will be resolved by an independent valuation firm of national standing (the “Valuation Firm”) jointly selected by the Indemnitee and the Indemnifying Party (and, if the Parties are unable to agree upon a Valuation Firm, then the Indemnitee and the Indemnifying Party shall each select an independent valuation firm of national standing, and the two (2) valuation firms so selected shall select a third (3rd) independent valuation firm of national standing to act as the Valuation Firm) and (y) any other dispute (including as to whether a Loss exists) shall be resolved in accordance with Section 10.117.11. The determination of the dispute by the Valuation Firm shall be final and binding on the Parties hereto, except in the case of manifest error or fraud. The costs of the Valuation Firm shall be allocated between the Indemnitee and the Indemnifying Party by the Valuation Firm in proportion to the extent that either of the Indemnitee or the Indemnifying Party did not prevail on the amount of the disputed Loss as submitted to the Valuation Firm. If the Indemnifying Party agrees to the payment of the Loss (subject to any limitations set forth in this Article VII VI that apply to such Loss) within the thirty (30)-day 30-day period described above, then it shall, within ten (10) Business Days after such agreement, pay to the Indemnitee the amount of the Loss that is payable pursuant to, and subject to the limitations set forth in, this Article VIIVI.