Common use of Notice and Resolution of Claims Clause in Contracts

Notice and Resolution of Claims. No claim for indemnification under Section 6.3.1 shall be actionable or payable (a) to the extent Seller received a proration, adjustment or credit at Closing for such claim; (b) if the claim in question results from or is based on a condition, state of facts or other matter which was known to any Seller Indemnified Party prior to or at Closing; (c) if the claim results from a breach of any representation, warranty or covenant of Seller or any successor to or assignee of Purchaser; (d) unless and until the valid claims under this Section 6.3 collectively aggregate more than the Deductible, in which event, subject to Section 6.3.3, only the amount of such claims over and above the Deductible shall be actionable; or (e) unless written notice containing a description of the specific nature of such claim shall have been given by any Seller Indemnified Party to Purchaser (x) promptly after it has notice of such claim (provided that the failure to provide such notice shall not affect the obligations of Purchaser unless and only to the extent that Purchaser is actually prejudiced thereby) and (y) in all events prior to the Property Representation Expiration Date or the Remaining Representation Expiration Date, as applicable. The foregoing is not intended to limit any duty of any Seller Indemnified Party to mitigate damages to the extent required under applicable law. 41 In the event that such claim involves a claim by a third party against the Seller Indemnified Party which seeks Damages in an amount in respect of which indemnification pursuant to this Section 6.3 would be available, Purchaser shall have fifteen (15) days after receipt of such notice to decide whether Purchaser will undertake, conduct and control, through counsel of Purchaser’s choosing (subject to the reasonable approval of the Seller Indemnified Party) and at its own expense, the settlement or defense thereof, and if Purchaser so decides, the Seller Indemnified Party shall cooperate with Purchaser in connection therewith, provided; that the Seller Indemnified Party may participate in such settlement or defense through counsel chosen by it, and provided further, that the reasonable fees and expenses of such separate counsel shall be borne by the Seller Indemnified Party unless: (a) the employment of such separate counsel shall have been approved by Purchaser in connection with the settlement or defense of such action, (b) Purchaser shall not have employed counsel reasonably satisfactory to the Seller Indemnified Party to direct the settlement or defense of such action, or (c) the Seller Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Purchaser, in any of which events the reasonable fees and expenses of such separate counsel shall constitute Damages hereunder. Purchaser shall have the sole right to settle or compromise any action which Purchaser determines to undertake, conduct and control as aforesaid, subject to the approval of the appropriate Seller Indemnified Party in its sole and absolute discretion, if the amount of the settlement would not serve to release all of the Seller Indemnified Parties from any liability in connection with such claim. In the event Purchaser does not undertake to conduct and control the defense of any claim, no Seller Indemnified Party shall settle the same without the prior written approval of Purchaser, not to be unreasonably withheld, conditioned or delayed. Purchaser and the Seller Indemnified Party shall cooperate reasonably in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Section 6.3, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other reasonable non-privileged information.

Notice and Resolution of Claims. No claim for indemnification under Section 6.3.1 5.5.2 shall be actionable or payable (a) to the extent Seller Purchaser received a proration, adjustment or credit at Closing for such claim; (b) if the claim in question results from or is based on a condition, state of facts or other matter which was known to any Seller Purchaser Indemnified Party (other than the Trust, Property Manager or Riverside LLC as constituted prior to Closing) prior to or at ClosingClosing (it being agreed that any written information delivered to Purchaser prior to or at Closing is deemed to be known to any Purchaser Indemnified Party but shall not vary Seller’s representations and warranties except to the extent provided in Section 4.2.5); (c) if the claim results from a breach of any representation, warranty or covenant of Seller Purchaser or any successor to or assignee of Purchaser; (d) unless and until the valid claims under this Section 6.3 5.5 collectively aggregate more than THREE HUNDRED THOUSAND DOLLARS ($300,000) (the “Deductible”), in which event, subject to Section 6.3.35.5.3, only the amount of such claims over and above the Deductible shall be actionable; or (e) unless written notice containing a description of the specific nature of such claim shall have been given by any Seller Purchaser Indemnified Party to Purchaser Seller (x) promptly after it has notice of such claim (provided that the failure to provide such notice shall not affect the obligations of Purchaser Seller unless and only to the extent that Purchaser is Seller are actually prejudiced thereby) and (y) in all events prior to the Property Representation Expiration Date or the Remaining Representation Expiration Date, as applicable. The foregoing is not intended to limit any duty of any Seller Purchaser Indemnified Party to mitigate damages to the extent required under applicable law. 41 In the event that such claim involves a claim by a third party against the Seller Purchaser Indemnified Party which seeks Damages in an amount in respect of which indemnification pursuant to this Section 6.3 5.5 would be available, Purchaser Seller shall have fifteen (15) days after receipt of such notice to decide whether Purchaser Seller will undertake, conduct and control, through counsel of PurchaserSeller’s choosing (subject to the reasonable approval of the Seller Purchaser Indemnified Party) and at its own expense, the settlement or defense thereofthereof (including, without limitation, the defense thereof by any insurer and any claims against any insurer and the conduct and control of any claims against any insurer with respect to such third party claim), and if Purchaser Seller so decides, the Seller Purchaser Indemnified Party shall cooperate with Purchaser Seller in connection therewith, provided; that the Seller Purchaser Indemnified Party may participate in such settlement or defense through counsel chosen by itit , and provided further, that the reasonable fees and expenses of such separate counsel shall be borne by the Seller Purchaser Indemnified Party unless: (a) the employment of such separate counsel shall have been approved by Purchaser Seller in connection with the settlement or defense of such action, (b) Purchaser Seller shall not have employed counsel reasonably satisfactory to the Seller Purchaser Indemnified Party to direct the settlement or defense of such action, or (c) the Seller Purchaser Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to PurchaserSeller, in any of which events the reasonable fees and expenses of such separate counsel shall constitute Damages hereunder. Purchaser Seller shall have the sole right to settle or compromise any action which Purchaser Seller determines to undertake, conduct and control as aforesaid, subject to the approval of the appropriate Seller Purchaser Indemnified Party in its sole and absolute discretion, if the amount of the settlement would not serve to release all of the Seller Purchaser Indemnified Parties from any all liability in connection with such claim. In the event Purchaser Seller does not undertake to conduct and control the defense of any claim, no Seller Purchaser Indemnified Party shall settle the same without the prior written approval of PurchaserSeller, not to be unreasonably withheld, conditioned or delayed. Purchaser Seller and the Seller Purchaser Indemnified Party shall cooperate reasonably in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Section 6.35.5, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other reasonable non-privileged information.

Notice and Resolution of Claims. No claim for indemnification under Section 6.3.1 shall be actionable or payable (a) to the extent Seller received a proration, adjustment or credit at Closing for such claim; (b) if the claim in question results from or is based on a condition, state of facts or other matter which was known to any Seller Indemnified Party prior to or at Closing; (c) if the claim results from a breach of any representation, warranty or covenant of Seller or any successor to or assignee of Purchaser; (d) unless and until the valid claims under this Section 6.3 collectively aggregate more than the Deductible, in which event, subject to Section 6.3.3, only the amount of such claims over and above the Deductible shall be actionable; or (e) unless written notice containing a description of the specific nature of such claim shall have been given by any Seller Indemnified Party to Purchaser (x) promptly after it has notice of such claim (provided that the failure to provide such notice shall not affect the obligations of Purchaser unless and only to the extent that Purchaser is actually prejudiced thereby) and (y) in all events prior to the Property Representation Expiration Date or the Remaining Representation Expiration Date, as applicable. The foregoing is not intended to limit any duty of any Seller Indemnified Party to mitigate damages to the extent required under applicable law. 41 In the event that such claim involves a claim by a third party against the Seller Indemnified Party which seeks Damages in an amount in respect of which indemnification pursuant to this Section 6.3 would be available, Purchaser shall have fifteen (15) days after receipt of such notice to decide whether Purchaser will undertake, conduct and control, through counsel of Purchaser’s choosing (subject to the reasonable approval of the Seller Indemnified Party) and at its own expense, the settlement or defense thereof, and if Purchaser so decides, the Seller Indemnified Party shall cooperate with Purchaser in connection therewith, provided; that the Seller Indemnified Party may participate in such settlement or defense through counsel chosen by it, and provided further, that the reasonable fees and expenses of such separate counsel shall be borne by the Seller Indemnified Party unless: (a) the employment of such separate counsel shall have been approved by Purchaser in connection with the settlement or defense of such action, (b) Purchaser shall not have employed counsel reasonably satisfactory to the Seller Indemnified Party to direct the settlement or defense of such action, or (c) the Seller Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to Purchaser, in any of which events the reasonable fees and expenses of such separate counsel shall constitute Damages hereunder. Purchaser shall have the sole right to settle or compromise any action which Purchaser determines to undertake, conduct and control as aforesaid, subject to the approval of the appropriate Seller Indemnified Party in its sole and absolute discretion, if the amount of the settlement would not serve to release all of the Seller Indemnified Parties from any liability in connection with such claim. In the event Purchaser does not undertake to conduct and control the defense of any claim, no Seller Indemnified Party shall settle the same without the prior written approval of Purchaser, not to be unreasonably withheld, conditioned or delayed. Purchaser and the Seller Indemnified Party shall cooperate reasonably in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Section 6.3, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other reasonable non-privileged information.

Notice and Resolution of Claims. No claim for indemnification under Section 6.3.1 5.5.2 shall be actionable or payable (a) to the extent Seller Purchaser received a proration, adjustment or credit at Closing for such claim; (b) if the claim in question results from or is based on a condition, state of facts or other matter which was known to any Seller Purchaser Indemnified Party (other than the Transferred Companies or the Property Managers as constituted prior to Closing) prior to or at ClosingClosing (it being agreed that any written information delivered to Purchaser prior to or at Closing is deemed to be known to any Purchaser Indemnified Party but shall not vary Seller’s representations and warranties except to the extent provided in Section 4.2.5); (c) if the claim results from a breach of any representation, warranty or covenant of Seller Purchaser or any successor to or assignee of Purchaser; (d) unless and until the valid claims under this Section 6.3 5.5 collectively aggregate more than Six Hundred Thousand Dollars ($600,000.00) (the “Deductible”), in which event, subject to Section 6.3.35.5.3, only the amount of such claims over and above the Deductible shall be actionable; or (e) unless written notice containing a description of the specific nature of such claim shall have been given by any Seller Purchaser Indemnified Party to Purchaser Seller (x) promptly after it has notice of such claim (provided that the failure to provide such notice shall not affect the obligations of Purchaser Seller unless and only to the extent that Purchaser is Seller are actually prejudiced thereby) and (y) in all events prior to the Property Representation Expiration Date or the Remaining Representation Expiration Date, as applicable. The foregoing is not intended to limit any duty of any Seller Purchaser Indemnified Party to mitigate damages to the extent required under applicable law. 41 In the event that such claim involves a claim by a third party against the Seller Purchaser Indemnified Party which seeks Damages in an amount in respect of which indemnification pursuant to this Section 6.3 5.5 would be available, Purchaser Seller shall have fifteen (15) days after receipt of such notice to decide whether Purchaser Seller will undertake, conduct and control, through counsel of PurchaserSeller’s choosing (subject to the reasonable approval of the Seller Purchaser Indemnified Party) and at its own expense, the settlement or defense thereofthereof (including, without limitation, the defense thereof by any insurer and any claims against any insurer and the conduct and control of any claims against any insurer with respect to such third party claim), and if Purchaser Seller so decides, the Seller Purchaser Indemnified Party shall cooperate with Purchaser Seller in connection therewith, provided; provided that the Seller Purchaser Indemnified Party may participate in such settlement or defense through counsel chosen by it, and provided further, that the reasonable fees and expenses of such separate counsel shall be borne by the Seller Purchaser Indemnified Party unless: (a) the employment of such separate counsel shall have been approved by Purchaser Seller in connection with the settlement or defense of such action, (b) Purchaser Seller shall not have employed counsel reasonably satisfactory to the Seller Purchaser Indemnified Party to direct the settlement or defense of such action, or (c) the Seller Purchaser Indemnified Party shall have reasonably concluded that there may be defenses available to it which are different from or additional to those available to PurchaserSeller, in any of which events the reasonable fees and expenses of such separate counsel shall constitute Damages hereunder. Purchaser Seller shall have the sole right to settle or compromise any action which Purchaser Seller determines to undertake, conduct and control as aforesaid, subject to the approval of the appropriate Seller Purchaser Indemnified Party in its sole and absolute discretion, if the amount of the settlement would not serve to release all of the Seller Purchaser Indemnified Parties from any all liability in connection with such claim. In the event Purchaser Seller does not undertake to conduct and control the defense of any claim, no Seller Purchaser Indemnified Party shall settle the same without the prior written approval of PurchaserSeller, not to be unreasonably withheld, conditioned or delayed. Purchaser Seller and the Seller Purchaser Indemnified Party shall cooperate reasonably in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Section 6.35.5, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other reasonable non-privileged information.