Common use of Defense and Indemnification Procedures Clause in Contracts

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon as is practicable inform the Developer in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer will not constitute a waiver of any rights of the Department except to the extent the rights of the Developer are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Developer notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, will constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Developer are actually and materially prejudiced thereby. (b) The Developer will be entitled and obligated to appoint counsel of its choice at the expense of the Developer to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney General. Notwithstanding the Developer’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the Developer; (iii) the Developer will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action; (iv) the Developer authorizes the State Indemnitee to employ separate counsel at the Developer’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the Developer’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer receives reasonable notice and the opportunity to be heard and such court approval has become final and non-appealable.

Defense and Indemnification Procedures. ‌ (a) 13.3.1 In the event that either Party becomes aware of any Third-Party Claim for which a Party (the Developer “Indemnifying Party”) may be required to indemnify a State an Indemnitee hereunder is asserted in writing against the Departmenthereunder, it will as soon promptly as is practicable inform notify the Developer other Party in writing of such Claim, and such notice will include a copy of the Claim (if available) and any related correspondence or documentation from the third party asserting the Claimdocumentation; provided, that if the Party required to give notice is the Indemnitee, any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Indemnitee, except to the extent that the rights of the Developer Indemnifying Party are actually and materially prejudiced thereby. If any Third-Third Party Claim for which the Developer Contractor may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Developer Concessionaire prompt notice in writing of such Claim Claim, together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, will constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Developer Contractor are actually and materially prejudiced thereby. (b) 13.3.2 The Developer Indemnifying Party will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Indemnifying Party to represent a State an Indemnitee in any action for which indemnification is sought (in which case the Developer Indemnifying Party will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch Indemnitee. Notwithstanding the DeveloperIndemnifying Party’s appointment of counsel to represent a State an Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Indemnifying Party will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Indemnifying Party to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Indemnifying Party and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or or other State Indemnitees which are different from or additional to those available to the DeveloperIndemnifying Party, and the Indemnifying Party has not provided the Indemnitee with its own separate counsel satisfactory to such Indemnitee; (iii) the Developer Indemnifying Party will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Indemnifying Party authorizes the State Indemnitee to employ separate counsel at the DeveloperIndemnifying Party’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) 13.3.3 The Developer Indemnifying Party will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperIndemnifying Party’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer Indemnifying Party receives reasonable notice and the opportunity to be heard and such court approval has become final and non-appealable.

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon promptly as is practicable inform notify the Developer Concessionaire in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Department, except to the extent that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Developer Concessionaire prompt notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, will constitute a waiver of any rights of such State Indemnitee to 126 DMEAST #27287336 v26 indemnification to the extent, and only to the extent, that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. (b) The Developer Concessionaire will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Concessionaire to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer Concessionaire will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch State Indemnitee. Notwithstanding the DeveloperConcessionaire’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Concessionaire will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Concessionaire to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Concessionaire and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the DeveloperConcessionaire; (iii) the Developer Concessionaire will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Concessionaire authorizes the State Indemnitee to employ separate counsel at the DeveloperConcessionaire’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer Concessionaire will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperConcessionaire’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer Concessionaire receives reasonable notice and the opportunity to be heard and such court approval has become final and non-non- appealable.

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon promptly as is practicable inform notify the Developer Concessionaire in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Department, except to the extent that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Developer Concessionaire prompt notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, will constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. (b) The Developer Concessionaire will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Concessionaire to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer Concessionaire will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch State Indemnitee. Notwithstanding the DeveloperConcessionaire’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Concessionaire will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Concessionaire to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Concessionaire and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the DeveloperConcessionaire; (iii) the Developer Concessionaire will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Concessionaire authorizes the State Indemnitee to employ separate counsel at the DeveloperConcessionaire’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer Concessionaire will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperConcessionaire’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the EXECUTION VERSION – DECEMBER 5, 2011 settlement or compromise is approved by the court after the Developer Concessionaire receives reasonable notice and the opportunity to be heard and such court approval has become final and non-non- appealable.

Defense and Indemnification Procedures. ‌ (a) In the event that either Party becomes aware of any Third-Party Claim for which a Party (the Developer “Indemnifying Party”) may be required to indemnify a State an Indemnitee hereunder is asserted in writing against the Departmenthereunder, it will as soon promptly as is practicable inform notify the Developer other Party in writing of such Claim, and such notice will include a copy of the Claim (if available) and any related correspondence or documentation from the third party asserting the Claimdocumentation; provided, that if the Party required to give notice is the Indemnitee, any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Indemnitee, except to the extent that the rights of the Developer Indemnifying Party are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer DB Contractor may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Developer Concessionaire prompt notice in writing of such Claim Claim, together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, will constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Developer DB Contractor are actually and materially prejudiced thereby. (b) The Developer Indemnifying Party will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Indemnifying Party to represent a State an Indemnitee in any action for which indemnification is sought (in which case the Developer Indemnifying Party will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch Indemnitee. Notwithstanding the DeveloperConcessionaire’s appointment of counsel to represent a State an Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Indemnifying Party will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Indemnifying Party to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Indemnifying Party and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the DeveloperIndemnifying Party; (iii) the Developer Indemnifying Party will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Indemnifying Party authorizes the State Indemnitee to employ separate counsel at the DeveloperIndemnifying Party’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer Indemnifying Party will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperIndemnifying Party’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer Indemnifying Party receives reasonable notice and the opportunity to be heard and such court approval has become final and non-appealable.

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon as is practicable inform the Developer in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer will not constitute a waiver of any rights of the Department except to the extent the rights of the Developer are actually and materially prejudiced therebyDepartment. If any Third-Party Claim for which the Developer may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Developer notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, will constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Developer are actually and materially prejudiced thereby. (b) The Developer will be entitled and obligated to appoint counsel of its choice at the expense of the Developer to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney General. Notwithstanding the Developer’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the Developer; (iii) the Developer will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action; (iv) the Developer authorizes the State Indemnitee to employ separate counsel at the Developer’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the Developer’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer receives reasonable notice and the opportunity to be heard and such court approval has become final and non-appealable.

Defense and Indemnification Procedures. ‌ (a) In the event that any Third-Party Claim for which the Developer Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against the Department, it will as soon promptly as is practicable inform notify the Developer Concessionaire in writing of such Claim, and such notice will include a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim; provided, that any failure by the Department to inform the Developer give such prompt notice will not constitute a waiver of any rights of the Department Department, except to the extent that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. If any Third-Party Claim for which the Developer Concessionaire may be required to indemnify a State Indemnitee hereunder is asserted in writing against a State Indemnitee other than the Department, a failure by such State Indemnitee to give the Developer Concessionaire prompt notice in writing of such Claim together with a copy of the Claim and any related correspondence or documentation from the third party asserting the Claim, will constitute a waiver of any rights of such State Indemnitee to indemnification to the extent, and only to the extent, that the rights of the Developer Concessionaire are actually and materially prejudiced thereby. (b) The Developer Concessionaire will be entitled and obligated to appoint counsel of its choice at the expense of the Developer Concessionaire to represent a State Indemnitee in any action for which indemnification is sought (in which case the Developer Concessionaire will not thereafter be responsible for the fees and expenses of any separate counsel retained by that State Indemnitee except as set forth below); provided, that such counsel will be satisfactory to the Virginia Office of the Attorney Generalsuch State Indemnitee. Notwithstanding the DeveloperConcessionaire’s appointment of counsel to represent a State Indemnitee in any action, such State Indemnitee will have the right to employ separate counsel, and the Developer Concessionaire will bear the reasonable fees, costs and expenses of such separate counsel, if: (i) the use of counsel chosen by the Developer Concessionaire to represent the State Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the State Indemnitee and the Developer Concessionaire and the State Indemnitee will have reasonably concluded that there may be legal defenses available to it and/or other State Indemnitees which are different from or additional to those available to the DeveloperConcessionaire; (iii) the Developer Concessionaire will not have employed counsel to represent the State Indemnitee within a reasonable time after notice of the institution of such action;; or (iv) the Developer Concessionaire authorizes the State Indemnitee to employ separate counsel at the DeveloperConcessionaire’s expense; or (v) the Developer is otherwise not providing an effective defense in connection with the action. (c) The Developer Concessionaire will not be liable for any settlement or compromise by an affected State Indemnitee of a Third Party Claim except with the DeveloperConcessionaire’s prior written consent, which consent will not be unreasonably withheld or delayed, or except where the settlement or compromise is approved by the court after the Developer Concessionaire receives reasonable notice and the opportunity to be heard and such court approval has become final and non-non- appealable.