Common use of Conduct of Third Party Claims Clause in Contracts

Conduct of Third Party Claims. (i) Whenever a claim for indemnification shall arise under this Section 12 as a result of a third-party claim, the party seeking indemnification (the “Indemnified Party”), shall notify the party from whom such indemnification is sought (the “Indemnifying Party”) in writing of the claim and the facts constituting the basis for such claim in reasonable detail and the amount thereof, to the extent known, along with copies of the relevant documents evidencing the claim and the basis for indemnification sought; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except if and to the extent that the Indemnifying Party demonstrates that the defense of such claim is actually prejudiced by the Indemnified Party’s failure to give such notice and in such case, only to the extent of such prejudice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by the Indemnified Party relating to the claim. (ii) Such Indemnifying Party shall have the right to retain the counsel of its choice in connection with such claim and to participate at its own expense in the defense of any such claim; provided, however, that counsel to the Indemnifying Party shall not (except with the consent of the relevant Indemnified Party) also be counsel to such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. (iii) No Indemnifying Party shall, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Section 12 unless such settlement, compromise or consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim, and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.

Conduct of Third Party Claims. (i) Whenever a claim for indemnification shall arise under this Section 12 16 as a result of a third-party claim, the party seeking indemnification (the “Indemnified Party”), shall notify the party from whom such indemnification is sought (the “Indemnifying Party”) in writing of the claim and the facts constituting the basis for such claim in reasonable detail and the amount thereof, to the extent known, along with copies of the relevant documents evidencing the claim and the basis for indemnification sought; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except if and to the extent that the Indemnifying Party demonstrates that the defense of such claim is actually prejudiced by the Indemnified Party’s failure to give such notice and in such case, only to the extent of such prejudice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by the Indemnified Party relating to the claim.detail; (ii) Such Indemnifying Party shall have the right to retain the counsel of its choice in connection with such claim and to participate at its own expense in the defense of any such claim; provided, however, that counsel to the Indemnifying Party shall not (except with the consent of the relevant Indemnified Party) also be counsel to such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.; and (iii) No Indemnifying Party shall, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Section 12 16 unless such settlement, compromise or consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.

Conduct of Third Party Claims. (a) This Section 44.5 applies to the conduct of Claims by third parties against Beneficiaries. (b) Subject to Sections 44.5(d) 44.5(e) and 44.5(f) on the giving of notice by the Beneficiary as required by Section 44.3, where it appears that the Beneficiary is or may be entitled to indemnification from the Indemnifier in respect of all, but not part only, of the liability arising out of the Claim, the Indemnifier will (subject to providing the Beneficiary with a secured indemnity to the satisfaction of the Beneficiary, acting reasonably, against all costs and expenses that the Beneficiary may incur by reason of such action) be entitled to dispute the Claim in the name of the Beneficiary, at the Indemnifier’s own expense, and take conduct of any defence, dispute, compromise, or appeal of the Claim and of any incidental negotiations. The Beneficiary will give the Indemnifier all reasonable co-operation, access and assistance for the purposes of considering and resisting such Claim. Where representation of the Indemnifier and Beneficiary would be inappropriate due to any actual or potential conflict of interest between the Indemnifier and the Beneficiary, the Beneficiary will have the right to employ separate counsel in respect of such Claim and the reasonable fees and expenses of such counsel will be for the account of the Indemnifier. (c) With respect to any Claim conducted by the Indemnifier: (i) Whenever the Indemnifier will keep the Beneficiary fully informed and consult with the Beneficiary about material elements of the conduct of the Claim; (ii) the Indemnifier will not bring the name or reputation of the Beneficiary into disrepute; (iii) the Indemnifier will not pay, compromise or settle such Claim without the prior consent of the Beneficiary, such consent not to be unreasonably withheld or delayed; (iv) the Indemnifier will not admit liability or fault to any third party without the prior consent of the Beneficiary, such consent not to be unreasonably withheld or delayed; and (v) the Indemnifier will use all reasonable efforts to have the Beneficiary named as a claim for indemnification shall arise beneficiary under any release given by the persons bringing the Claim to which this Section 44.5 relates. (d) The Beneficiary will be free to pay or settle any such Claim on such terms as it thinks fit and without prejudice to its rights and remedies under this Agreement if: (i) the Indemnifier is not entitled to take conduct of the Claim in accordance with Section 12 44.5(b); (ii) the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant Claim within 30 Days of the notice from the Beneficiary under Section 44.5(b) or notifies the Beneficiary that the Indemnifier does not intend to take conduct of the Claim; or (iii) the Indemnifier fails to comply in any material respect with Section 44.5(c). (e) The Beneficiary will be free at any time to give notice to the Indemnifier that the Beneficiary is retaining or taking over, as a result of a third-party claimthe case may be, the party seeking indemnification conduct of any defence, dispute, compromise or appeal of any Claim, or of any incidental negotiations, to which Section 44.5(d) applies. The Operator acknowledges and agrees that where the Province is the Beneficiary, the Province may retain or take over such conduct in any matter involving compliance with environmental standards and Applicable Law or any matter involving public policy. On receipt of such notice the Indemnifier will promptly take all steps necessary to transfer the conduct of such Claim to the Beneficiary and will provide to the Beneficiary all relevant documentation and all reasonable co-operation, access and assistance for the purposes of considering and resisting such Claim. If the Beneficiary gives any notice pursuant to this Section 44.5(e), the Indemnifier will be released from any liabilities arising after the date of such notice from any liability under its secured indemnity given under Section 44.5(b), but the Indemnifier will not be thereby released from its obligations to indemnify the Beneficiary pursuant to Sections 44.1 or 44.2, as the case may be. (f) If the Indemnifier pays to the Beneficiary an amount in respect of an indemnity and the Beneficiary subsequently recovers, whether by payment, discount, credit, saving, relief, set off or other benefit or otherwise, a sum or anything else of value (the “Indemnified Party”), shall notify the party from whom such indemnification is sought (the “Indemnifying PartyRecovery Amount”) which is directly referable to the fact, matter, event or circumstances giving rise to the Claim under the indemnity, the Beneficiary will forthwith repay to the Indemnifier whichever is the lesser of: (i) an amount equal to the Recovery Amount, less any out-of-pocket costs and expenses properly incurred by the Beneficiary in writing recovering the same; and (ii) the amount paid to the Beneficiary by the Indemnifier in respect of the claim and the facts constituting the basis for such claim in reasonable detail and the amount thereof, to the extent known, along with copies of Claim under the relevant documents evidencing the claim and the basis for indemnification sought; indemnity, provided that there will be no obligation on the failure Beneficiary to notify pursue any Recovery Amount and that the Indemnifying Party Indemnifier will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except if and be repaid only to the extent that the Indemnifying Party demonstrates that Recovery Amount, aggregated with any sum recovered from the defense of such claim is actually prejudiced Indemnifier, exceeds the loss sustained by the Indemnified Party’s failure to give such notice and in such case, only to the extent of such prejudice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by the Indemnified Party relating to the claimBeneficiary. (iig) Such Indemnifying Party shall Any person taking any of the steps contemplated by this Section 44.5 will comply with the requirements of every insurer who may have the right an obligation to retain the counsel of its choice provide an indemnity in connection with such claim and to participate at its own expense in the defense respect of any such claim; provided, however, that counsel to the Indemnifying Party shall not (except with the consent of the relevant Indemnified Party) also be counsel to such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction liability arising out of the same general allegations or circumstancesunder this Agreement. (iiih) No Indemnifying Party shallTo the extent that an Indemnifier has fulfilled its indemnity obligations pursuant to this Section 44, without the prior written consent such Indemnifier will be subrogated to all rights and claims of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to Beneficiary who the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Section 12 unless such settlement, compromise or consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claimIndemnifier has indemnified, and (B) does not include a statement as will be entitled to or an admission of fault, culpability or a failure exercise all remedies available to act by or on behalf of any Indemnified Partysuch Indemnifier.

Conduct of Third Party Claims. (ia) Whenever Where MDOT or MDTA is entitled to make a claim for indemnification shall arise under this Section 12 as Agreement against the Phase Developer in relation to a result Third Party Claim, MDOT or MDTA shall give notice of a third-party claimthe relevant claim to the Phase Developer, setting out the party seeking indemnification (the “Indemnified Party”), shall notify the party from whom such indemnification is sought (the “Indemnifying Party”) in writing full particulars of the claim and whether or not the facts constituting defense is tendered to the basis for such claim in reasonable detail Phase Developer. (b) The Phase Developer acknowledges that: (i) the Maryland Office of the Attorney General is required by law to represent and defend MDOT, MDTA and the amount thereof, to State and may appoint counsel approved by the extent known, along with copies Maryland Office of the relevant documents evidencing the claim and the basis for indemnification soughtAttorney General to act in their stead; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except if and to the extent that the Indemnifying Party demonstrates that the defense of such claim is actually prejudiced by the Indemnified Party’s failure to give such notice and in such case, only to the extent of such prejudice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by the Indemnified Party relating to the claim.and (ii) Such Indemnifying certain other Indemnified Parties may have similar statutory representation obligations and rights. As a result, MDOT and the Indemnified Parties may elect to conduct their own defense at any time but may also agree to allow defense to be conducted in whole, in part, in conjunction with, or from time to time, by counsel appointed by the Phase Developer or its insurer. (c) Subject to S ection 23.6(b), if the insurer under any applicable Insurance Policy accepts the tender of defense, MDOT and the Phase Developer agree to cooperate in the defense proffered by the Insurance Policy. If no insurer under potentially applicable Insurance Policies provides defense, then Section 23.6(d) will apply. (d) Subject to S ection 23.6(b), if the defense is tendered to the Phase Developer, then within 30 days after receipt of the tender, the Phase Developer shall notify each relevant Indemnified Party whether it has tendered the matter to an insurer, and, if not tendered to an insurer or if the insurer has rejected the tender, shall deliver a notice stating that the Phase Developer: (i) accepts the tender of defense and confirms that the claim is subject to full indemnification without any "reservation of rights" to deny or disclaim full indemnification; (ii) accepts the tender of defense but with a "reservation of rights" in whole or in part; or (iii) rejects the tender of defense based on a determination that it is not required to indemnify against the claim under the terms of this Agreement. (e) Subject to S ection 23.6(b), if the Phase Developer accepts the tender of defense under S ections 23.6(d)(i) or 23.6(d)(ii), the Phase Developer shall have the right to retain select legal counsel for the counsel of its choice in connection with such claim Indemnified Party, subject to reasonable approval by the Indemnified Party, and to participate at its own expense in the Phase Developer shall otherwise direct the defense of any such claim; provided, howeverand bear the fees and costs of defending and settling such claim. MDOT shall be kept informed of the status of any claim covered by such insurance and the Phase Developer shall seek MDOT's consent to any settlement terms and conditions. (f) Subject to S ection 23.6(b), that counsel if the Phase Developer responds to the Indemnifying tender of defense as specified in S ection 23.6(d)(iii), the Indemnified Party may select its own legal counsel and otherwise control the defense of such claim, including settlement. (g) Despite S ections 23.6(d)(i) or 2 3.6(d)(ii), any Indemnified Party (regardless of whether it is entitled to conduct its own defense under Section 23.6(b)), may assume its own defense at any time by delivering to the Phase Developer notice of such election and the reasons therefor. (h) If an Indemnified Party elects to conduct its own defense of a claim for which it is entitled to indemnification under this Section 23.6, the Phase Developer shall reimburse on a current basis all reasonable costs and expenses the Indemnified Party incurs in investigating and defending such claim. If the Indemnified Party is entitled to and elects to conduct its own defense, then: (i) in the case of a defense that otherwise would be conducted under Section 23.6(d)(i), the Indemnified Party may settle or compromise the claim with the Phase Developer and each of the Phase Developer's relevant insurer(s)' prior written consent, which, in each case, shall not be unreasonably withheld or delayed; (except ii) in the case of a defense that otherwise would be conducted under Section 23.6(d)(ii), the Indemnified Party and the Phase Developer shall consult with each other on a regular basis to determine whether settlement is appropriate and, subject to the rights of any insurer providing coverage for the claim under a policy required under this Agreement, the Indemnified Party may settle or compromise the claim with the Phase Developer's prior written consent of without prejudice to the relevant Indemnified Party) also 's rights to be counsel to such Indemnified Party. In no event shall indemnified by the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.Phase Developer; and (iii) No Indemnifying Party shallin the case of a defense conducted under Section 23.6(d)(iii), without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld)Party may, subject to the rights of any insurer providing coverage for the claim under a policy required under this Agreement, settle or compromise the claim without the Phase Developer's prior written consent and without prejudice to its rights to be indemnified by the Phase Developer. (i) A refusal of, or consent failure to accept, a tender of defense, as well as any Dispute relating to assumption of control of defense by an Indemnified Party under Section 23.6(g), will be resolved according to the entry Dispute Resolution Procedures. The Phase Developer may contest an indemnification claim and pursue, through the Dispute Resolution Procedures, recovery of any judgment with respect defense and indemnity payments it has made to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Section 12 unless such settlement, compromise or consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim, and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any the Indemnified Party.

Conduct of Third Party Claims. (ia) Whenever Where MDOT or MDTA is entitled to make a claim for indemnification shall arise under this Section 12 as Agreement against the Phase Developer in relation to a result Third Party Claim, MDOT or MDTA shall give notice of a third-party claimthe relevant claim to the Phase Developer, setting out the party seeking indemnification (the “Indemnified Party”), shall notify the party from whom such indemnification is sought (the “Indemnifying Party”) in writing full particulars of the claim and whether or not the facts constituting defense is tendered to the basis for such claim in reasonable detail Phase Developer. (b) The Phase Developer acknowledges that: (i) the Maryland Office of the Attorney General is required by law to represent and defend MDOT, MDTA and the amount thereof, to State and may appoint counsel approved by the extent known, along with copies Maryland Office of the relevant documents evidencing the claim and the basis for indemnification soughtAttorney General to act in their stead; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except if and to the extent that the Indemnifying Party demonstrates that the defense of such claim is actually prejudiced by the Indemnified Party’s failure to give such notice and in such case, only to the extent of such prejudice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by the Indemnified Party relating to the claim.and (ii) Such Indemnifying certain other Indemnified Parties may have similar statutory representation obligations and rights. As a result, MDOT and the Indemnified Parties may elect to conduct their own defense at any time but may also agree to allow defense to be conducted in whole, in part, in conjunction with, or from time to time, by counsel appointed by the Phase Developer or its insurer. (c) Subject to Section 23.6(b), if the insurer under any applicable Insurance Policy accepts the tender of defense, MDOT and the Phase Developer agree to cooperate in the defense proffered by the Insurance Policy. If no insurer under potentially applicable Insurance Policies provides defense, then Section 23.6(d) will apply. (d) Subject to Section 23.6(b), if the defense is tendered to the Phase Developer, then within 30 days after receipt of the tender, the Phase Developer shall notify each relevant Indemnified Party whether it has tendered the matter to an insurer, and, if not tendered to an insurer or if the insurer has rejected the tender, shall deliver a notice stating that the Phase Developer: (i) accepts the tender of defense and confirms that the claim is subject to full indemnification without any "reservation of rights" to deny or disclaim full indemnification; (ii) accepts the tender of defense but with a "reservation of rights" in whole or in part; or (iii) rejects the tender of defense based on a determination that it is not required to indemnify against the claim under the terms of this Agreement. (e) Subject to Section 23.6(b), if the Phase Developer accepts the tender of defense under Sections 23.6(d)(i) or 23.6(d)(ii), the Phase Developer shall have the right to retain select legal counsel for the counsel of its choice in connection with such claim Indemnified Party, subject to reasonable approval by the Indemnified Party, and to participate at its own expense in the Phase Developer shall otherwise direct the defense of any such claim; provided, howeverand bear the fees and costs of defending and settling such claim. MDOT shall be kept informed of the status of any claim covered by such insurance and the Phase Developer shall seek MDOT's consent to any settlement terms and conditions. (f) Subject to Section 23.6(b), that counsel if the Phase Developer responds to the Indemnifying tender of defense as specified in Section 23.6(d)(iii), the Indemnified Party may select its own legal counsel and otherwise control the defense of such claim, including settlement. (g) Despite Sections 23.6(d)(i) or 23.6(d)(ii), any Indemnified Party (regardless of whether it is entitled to conduct its own defense under Section 23.6(b)), may assume its own defense at any time by delivering to the Phase Developer notice of such election and the reasons therefor. (h) If an Indemnified Party elects to conduct its own defense of a claim for which it is entitled to indemnification under this Section 23.6, the Phase Developer shall reimburse on a current basis all reasonable costs and expenses the Indemnified Party incurs in investigating and defending such claim. If the Indemnified Party is entitled to and elects to conduct its own defense, then: (i) in the case of a defense that otherwise would be conducted under Section 23.6(d)(i), the Indemnified Party may settle or compromise the claim with the Phase Developer and each of the Phase Developer's relevant insurer(s)' prior written consent, which, in each case, shall not be unreasonably withheld or delayed; (except ii) in the case of a defense that otherwise would be conducted under Section 23.6(d)(ii), the Indemnified Party and the Phase Developer shall consult with each other on a regular basis to determine whether settlement is appropriate and, subject to the rights of any insurer providing coverage for the claim under a policy required under this Agreement, the Indemnified Party may settle or compromise the claim with the Phase Developer's prior written consent of without prejudice to the relevant Indemnified Party) also 's rights to be counsel to such Indemnified Party. In no event shall indemnified by the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.Phase Developer; and (iii) No Indemnifying Party shallin the case of a defense conducted under Section 23.6(d)(iii), without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld)Party may, subject to the rights of any insurer providing coverage for the claim under a policy required under this Agreement, settle or compromise the claim without the Phase Developer's prior written consent and without prejudice to its rights to be indemnified by the Phase Developer. (i) A refusal of, or consent failure to accept, a tender of defense, as well as any Dispute relating to assumption of control of defense by an Indemnified Party under Section 23.6(g), will be resolved according to the entry Dispute Resolution Procedures. The Phase Developer may contest an indemnification claim and pursue, through the Dispute Resolution Procedures, recovery of any judgment with respect defense and indemnity payments it has made to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Section 12 unless such settlement, compromise or consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim, and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any the Indemnified Party.

Conduct of Third Party Claims. (i) Whenever a claim for indemnification shall arise under this Section 12 13 as a result of a third-party claim, the party seeking indemnification (the “Indemnified Party”), shall notify the party from whom such indemnification is sought (the “Indemnifying Party”) in writing of the claim and the facts constituting the basis for such claim in reasonable detail and the amount thereof, to the extent known, along with copies of the relevant documents evidencing the claim and the basis for indemnification sought; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except if and to the extent that the Indemnifying Party demonstrates that the defense of such claim is actually prejudiced by the Indemnified Party’s failure to give such notice and in such case, only to the extent of such prejudice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by the Indemnified Party relating to the claim.detail; (ii) Such Indemnifying Party shall have the right to retain the counsel of its choice in connection with such claim and to participate at its own expense in the defense of any such claim; provided, however, that counsel to the Indemnifying Party shall not (except with the consent of the relevant Indemnified Party) also be counsel to such Indemnified Party. In no event shall the Indemnifying Party be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.. Notwithstanding anything to the contrary in the foregoing, (A) if defendants in any action include any Indemnified Party and any Indemnifying Party, and any Indemnified Party shall have been advised by its counsel that there may be material legal defenses available to such Indemnified Party inconsistent with those available to the Indemnifying Party, the Indemnified Party shall have the right to employ its own counsel in such action, and in such case the fees and expenses of the Indemnified Party’s counsel shall be borne by such Indemnified Party and (B) if a conflict of interest exists between any Indemnified Party and any such Indemnifying Party with respect to such claim or the defense thereof, the Indemnified Party shall have the right to employ its own counsel in such action, and in such case the fees and expenses of the Indemnified Party’s counsel shall be borne by the Indemnifying Party; and (iii) No Indemnifying Party shall, without the prior written consent of the Indemnified Parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Section 12 13 unless such settlement, compromise or consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim, claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.

Conduct of Third Party Claims. (ia) Whenever Where the District is entitled to make a claim for indemnification shall arise under this Section 12 as Agreement against the Developer in relation to a result of a third-party claimThird Party Claim, the party seeking indemnification (the “Indemnified Party”), District shall notify the party from whom such indemnification is sought (the “Indemnifying Party”) in writing of the claim and the facts constituting the basis for such claim in reasonable detail and the amount thereof, to the extent known, along with copies give notice of the relevant documents evidencing the claim and the basis for indemnification sought; provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except if and to the extent that Developer promptly, setting out the Indemnifying Party demonstrates that the defense full particulars of such claim is actually prejudiced by the Indemnified Party’s failure to give such notice and in such case, only to the extent of such prejudice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by the Indemnified Party relating to the claim. (b) If the District receives notice of a claim or otherwise has actual knowledge of a claim that it believes is within the scope of the indemnities under Section 34.1 (Indemnity), and if the District gives notice thereof pursuant to Section 34.4(a) (Conduct of Third Party Claims), then the District shall have the right to conduct its own defense unless either an insurer accepts defense of the claims within the time required by Applicable Law or the Developer accepts the tender of the claim in accordance with Section 34.4(d) (Conduct of Third Party Claims). (c) If the insurer under any applicable Insurance Policy accepts the tender of defense, the District and the Developer shall cooperate in defense as required by the Insurance Policy. If no insurer under potentially applicable Insurance Policies provides defense, then Section 34.4(d) (Conduct of Third Party Claims) shall apply. (d) If the defense is tendered to the Developer, then within thirty (30) days after receipt of the tender it shall notify the Indemnified Party whether it has tendered the matter to an insurer and, if not tendered to an insurer or if the insurer has rejected the tender, shall deliver a notice stating that the Developer: (i) Accepts the tender of defense and confirms that the claim is subject to full indemnification hereunder without any “reservation of rights” to deny or disclaim full indemnification thereafter; (ii) Such Indemnifying Accepts the tender of defense but with a “reservation of rights” in whole or in part; or (iii) Rejects the tender of defense based on a determination that it is not required to indemnify against the claim under the terms of this Agreement. (e) If the Developer accepts the tender of defense under Section 34.4(d)(i) (Conduct of Third Party Claims), the Office of the Attorney General for the District of Columbia shall select legal counsel for the District, and the Developer shall otherwise select legal counsel for the Indemnified Party (in each case as applicable) and shall control the defense of such claim, including settlement, and bear the fees and costs of defending and settling such claim. During such defense: (i) The Developer shall fully and regularly inform the Indemnified Party of the progress of the defense and of any settlement discussions; and (ii) The Indemnified Party shall fully cooperate in said defense, provide to the Developer all materials and access to personnel it requests as necessary for defense, preparation and trial and which or who are under the control of or reasonably available to the Indemnified Party, and maintain the confidentiality of all communications between it and the Developer concerning such defense. (f) If the Developer responds to the tender of defense as specified in Section 34.4(d)(iii) (Conduct of Third Party Claims), the Office of the Attorney General for the District of Columbia shall defend or select the relevant legal counsel and otherwise control the defense of such claim, including settlement. (g) Notwithstanding Sections 34.4(d)(i) and 34.4(d)(ii) (Conduct of Third Party Claims), the Indemnified Party may revocably assume its own defense at any time by delivering to the Developer notice of such election and the reason therefor, if the Indemnified Party, at the time it gives notice of the claim or at any time thereafter, reasonably determines that: (i) A conflict exists between it and the Developer, which prevents or potentially prevents the Developer from presenting a full and effective defense; (ii) The Developer is not otherwise providing an effective defense in connection with the claim; or (iii) The Developer lacks the financial capacity to satisfy potential liability or to provide an effective defense. (h) If the Indemnified Party is entitled and elects to conduct its own defense pursuant hereto of a claim for which it is entitled to indemnification, the Developer shall reimburse on a current basis all reasonable costs and expenses the Indemnified Party incurs in investigating and defending such claim. If the Indemnified Party is entitled to and elects to conduct its own defense, then: (i) In the case of a defense that otherwise would be conducted under Section 34.4(d)(i) (Conduct of Third Party Claims), the Indemnified Party shall have the right to retain settle or compromise the counsel claim with each of the Developer’s and the Developer’s relevant insurer(s)’ prior written consent, which, in each case, shall not be unreasonably withheld or delayed; (ii) In the case of a defense that otherwise would be conducted under Section 34.4(d)(ii) (Conduct of Third Party Claims), the Indemnified Party and the Developer shall consult with each other on a regular basis to determine whether settlement is appropriate and, subject to the right of any insurer providing coverage for the claim under a policy required under this Agreement, the Indemnified Party shall have the right to settle or compromise the claim with the Developer’s prior written consent (such consent not to be unreasonably withheld, conditioned, or delayed) without prejudice to the Indemnified Party’s rights to be indemnified by the Developer; and (iii) In the case of a defense conducted under Section 34.4(d)(iii) (Conduct of Third Party Claims), the Indemnified Party shall, subject to the rights of any insurer providing coverage for the claims under a policy required under this Agreement, have the right to settle or compromise the claim without the Developer’s prior written consent and without prejudice to its choice rights to be indemnified by the Developer. (i) If the claim is resolved in connection with favor of the Indemnified Party and the Indemnified Party has recovered its costs and expenses as a result of such favorable resolution for which it has been previously reimbursed by the Developer, the Developer shall be entitled to recover from the Indemnified Party the costs and expenses for which the Developer has previously reimbursed such Indemnified Party; provided an Indemnified Party shall have no affirmative obligation to pursue recovery of such costs and expenses from any party other than the Developer. (j) A refusal of, or failure to accept, a tender of defense, as well as any Dispute over whether an Indemnified Party that has assumed control of defense is entitled to do so under Section 34.4(g) (Conduct of Third Party Claims), shall be resolved according to the Dispute Resolution Procedures. The Developer shall be entitled to contest an indemnification claim and pursue, through the Dispute Resolution Procedures, recovery of defense and indemnity payments it has made to participate at its own expense in the defense of any such claim; provided, however, that counsel to the Indemnifying Party shall not (except with the consent or on behalf of the relevant Indemnified Party) also be counsel to such Indemnified Party. In no the event shall the Indemnifying an Indemnified Party be liable for fees initiates litigation in order to enforce its right to indemnification and expenses of more than one counsel (prevails, in addition to any local counsel) separate from its own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. (iii) No Indemnifying Party shallother obligations hereunder, without the prior written consent of the Indemnified Parties (which consent Party shall be entitled to recover all of its costs and expenses, including but not be unreasonably withheld)limited to expert fees, settle or compromise or consent to the entry of any judgment associated with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification could be sought under this Section 12 unless such settlement, compromise or consent (A) includes an unconditional release of each Indemnified Party from all liability arising out of such litigation, investigation, proceeding or claim, and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Partyaction.