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. 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 shall be actionable or payable (a) An indemnified party hereunder shall promptly give written notice to the extent Seller received indemnifying party after obtaining knowledge of any claim against the indemnified party as to which recovery may be sought against the indemnifying party because of the indemnity set forth above, and, if such indemnity shall arise from the claim of a prorationthird party, adjustment shall permit the indemnifying party to assume the defense of any such claim or credit at Closing for any litigation resulting from such claim; (b) if . Such notice shall specify the basis for the claim in question results from or is based reasonable detail. No delay 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 part of the specific nature indemnified party in notifying the indemnifying party shall relieve the indemnifying party from any liability or obligation hereunder unless (and then solely to the extent) the indemnifying party is damaged thereby. Failure by the indemnifying party to notify the indemnified party of its election to defend any such claim or action by a third party within 15 days after notice thereof shall have been given to the indemnifying party shall be deemed a waiver by any Seller Indemnified Party the indemnifying party of its right to Purchaser defend such claim or action, but such failure will not void the indemnity. (xb) promptly after it has notice If the indemnifying party assumes the defense of such claim (provided that the failure to provide such notice shall not affect or litigation resulting therefrom, the obligations of Purchaser unless the indemnifying party hereunder as to such claim shall include taking all reasonable steps necessary in the defense or settlement of such claim or litigation resulting therefrom and only to defending and holding the extent that Purchaser is actually prejudiced thereby) indemnified party harmless from and (y) in against any and all events prior to the Property Representation Expiration Date Damages and liabilities caused by or the Remaining Representation Expiration Date, as applicable. The foregoing is not intended to limit any duty arising out of any Seller Indemnified Party to mitigate damages to the extent required under applicable law. 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 approved by the Seller Indemnified Party unless: (a) the employment of such separate counsel shall have been approved by Purchaser in connection with the settlement indemnifying party 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 judgment in connection with such claimclaim or litigation resulting therefrom; provided, however, that if the indemnifying party shall assume such defense then such party shall have control of the defense. In The indemnified party may participate in the event Purchaser does not undertake to conduct and control defense with its own counsel paid for by the indemnified party. The indemnifying party shall not, in the defense of such claim or any claimlitigation resulting therefrom, no Seller Indemnified Party shall settle consent to the same without entry of any judgment or enter into any settlement (except with the prior written approval consent of Purchaserthe indemnified party), which does not include, as to be unreasonably withheldthe indemnified party and as an unconditional term thereof, conditioned a release by the third party from any and all liability in respect of such claim or delayedlitigation. Purchaser and the Seller Indemnified Party shall The indemnified party will cooperate reasonably in all aspects the defense of any investigation, defense, pretrial activities, trial, compromise, settlement the action 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 informationclaim.

Notice and Resolution of Claims. No claim for indemnification under Section 6.3.1 shall be actionable or payable (a) As soon as is reasonably practicable after a party entitled to indemnification pursuant to Section 8.2 or 8.3 becomes aware of any claim that it has under Section 8.2 or 8.3, as applicable, that may result in a Loss (an “Indemnification Claim”), such party (the “Indemnified Party”) will give notice thereof (a “Claims Notice”) to the party from which indemnity is sought (the “Indemnifying Party”). A Claims Notice will describe the Indemnification Claim in reasonable detail, and will indicate the amount (estimated, if necessary and to the extent Seller received a proration, adjustment or credit at Closing for such claim; (bfeasible) 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 Loss that has been given or may be suffered by any Seller the Indemnified Party. No delay in or failure to give a Claims Notice by the Indemnified Party to Purchaser (xthe Indemnifying Party pursuant to this Section 8.4(a) promptly after it will adversely affect any of the other rights or remedies which the Indemnified Party has notice under this Agreement, or alter or relieve the Indemnifying Party of such claim (provided that its obligation to indemnify the failure to provide such notice shall not affect the obligations of Purchaser unless and only Indemnified Party, to the extent that Purchaser such delay or failure has not materially prejudiced the Indemnifying Party. (b) If an Indemnification Claim pursuant to Section 8.2 or 8.3 arises from any action that involves a claim involving a third party (a “Liability Claim”), the Indemnifying Party will have the right, exercisable by written notice to the Indemnified Party within thirty (30) days of receipt of the Claims Notice for such Liability Claim, to assume and conduct the defense of such Liability Claim in accordance with the limits set forth in this Agreement with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided that (i) the defense of such Liability Claim by the Indemnifying Party will not, in the reasonable judgment of the Indemnified Party, have a material adverse effect on the Indemnified Party; (ii) the Indemnifying Party has sufficient financial resources, in the reasonable judgment of the Indemnified Party, to satisfy the amount of any adverse monetary judgment that is actually prejudiced therebyreasonably likely to result from such Liability Claims; (iii) such Liability Claim solely seeks (and continues to seek) monetary damages; and (yiv) the Indemnifying Party expressly agrees in all events prior to writing that as between the Property Representation Expiration Date or Indemnifying Party and the Remaining Representation Expiration DateIndemnified Party, as applicable. The foregoing is not intended to limit any duty the Indemnifying Party may only satisfy and discharge such Liability Claim in accordance with terms of any Seller Indemnified Party to mitigate damages to this Agreement (the extent required under applicable lawconditions set forth in clauses (i) through (iv) are, collectively, the “Litigation Conditions”). In the event that such claim involves a claim by a third party against the Seller Indemnified Party which seeks Damages believes, after consulting with legal counsel, that use of counsel of the Indemnifying Party’s choice with respect to any Liability Claim would give rise to a conflict of interest, the Indemnified Party will retain the right to employ its own counsel and participate in an amount the defense of such Liability Claim, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in respect connection with the retention by the Indemnified Party of which indemnification pursuant to its own counsel. If the Indemnifying Party does not assume the defense of such Liability Claim in accordance with this Section 6.3 would 8.4(b), the Indemnified Party may continue to defend the Liability Claim. If the Indemnifying Party has assumed the defense of a Liability Claim as provided in this Section 8.4(b), the Indemnifying Party will not 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 liable for any legal expenses subsequently incurred by the reasonable approval Indemnified Party in connection with the defense thereof; except that if any of the Seller Litigation Conditions ceases to be met or the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Liability Claim, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs or expenses paid or incurred in connection therewith. The Indemnifying Party or the Indemnified Party) and , as the case may be, will have the right to participate in (but not control), 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 any Liability Claim which 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, other is defending as provided in any of which events the reasonable fees and expenses of such separate counsel shall constitute Damages hereunderthis Agreement. 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 discretionThe Indemnifying Party, 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 it has assumed the defense of any claimLiability Claim as provided in this Agreement, no Seller Indemnified Party shall settle the same will not, without the prior written approval consent of Purchaserthe Indemnified Party, consent to a settlement of, or the entry of any judgment arising from, any such Liability Claim which (i) does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from all liability in respect of such Liability Claim, or (ii) grants any injunctive or equitable relief, or (iii) may reasonably be expected to have a material adverse effect on the affected business of the Indemnified Party. The Indemnified Party will not settle any Liability Claim, without the prior written consent of the Indemnifying Party, which consent will not 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 shall be actionable or payable (a) Each Person entitled to indemnification pursuant to Section 8.1 or Section 8.2 (an "INDEMNIFIED PARTY") will promptly give written notice to the extent Seller received a proration, adjustment or credit at Closing Party who has the duty of indemnification under this Article 8 (the "INDEMNIFYING PARTY") after obtaining knowledge of any claim that it may have pursuant to this Article 8. Such notice will set forth in reasonable detail the claim and the basis for such claim; indemnification. (b) if If such claim for indemnity arises from a claim or Action involving a third party (a "THIRD-PARTY CLAIM"), 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 will permit the Indemnifying Party to assume its defense. If the Indemnifying Party assumes the defense of such Third-Party Claim, it will take all steps necessary to investigate, defend 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 settle such Third-Party Claim and until the valid claims under this Section 6.3 collectively aggregate more than the Deductible, in which eventwill, subject to Section 6.3.38.4, only hold the amount Indemnified Party harmless from and against any and all Damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claims over and above Third-Party Claim. Without the Deductible shall be actionable; or (e) unless written notice containing a description consent of the specific nature Indemnified Party, the Indemnifying Party will not consent to entry of such claim shall have been given by any Seller judgment or enter into any settlement that does not include an unconditional and complete release of the Indemnified Party to Purchaser (x) promptly after it has notice of such claim (provided that by the failure to provide such notice shall not affect claimant or plaintiff making 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 applicableThird-Party Claim. The foregoing is not intended to limit any duty of any Seller Indemnified Party to mitigate damages to the extent required under applicable law. 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 defense or settlement or defense through counsel chosen by itits own counsel, and provided further, that the reasonable fees and expenses of such separate counsel shall be borne but at its own expense. Failure by the Seller Indemnifying Party to notify the 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 its election 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 assume the defense of any claimThird-Party Claim within 30 days after its receipt of notice thereof pursuant to Section 8.3(a) will be deemed a waiver by the Indemnifying Party of its right to assume the defense of such Third-Party Claim. In such event, no Seller the Indemnified Party shall may defend against such Third-Party Claim in any manner it deems appropriate and may settle such Third-Party Claim or consent to 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 entry of any investigationjudgment with respect thereto, defense, pretrial activities, trial, compromise, settlement or discharge of any claim provided that it acts reasonably and 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 informationgood faith.

Notice and Resolution of Claims. No claim for indemnification under Section 6.3.1 shall be actionable or payable (a) Each Person entitled to indemnification pursuant to Section 8.1 or Section 8.2 (an "Indemnified Party") will give written notice to the party who has the duty of indemnification under this Article VIII (the "Indemnifying Party") promptly after obtaining knowledge of any claim that it may have pursuant to this Article VIII. Such notice will set forth in reasonable detail the claim and the basis for indemnification; provided, however, the failure to give such notice shall not relieve the Indemnifying Party from any liability except to the extent Seller received a proration, adjustment or credit at Closing for such claim; actually prejudiced thereby. (b) if If such claim for indemnity arises from a claim or action involving a third party (a "Third-Party Claims"), 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 will permit the Indemnifying Party to assume its defense. If the Indemnifying Party assumes the defense of such Third-Party Claim, it will take all steps necessary to investigate, defend 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 settle such action and until the valid claims under this Section 6.3 collectively aggregate more than the Deductible, in which eventwill, subject to Section 6.3.38.4, only hold the amount Indemnified Party harmless from and against any and all Damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claims over and above Third-Party Claim. Without the Deductible shall be actionable; or (e) unless written notice containing a description consent of the specific nature Indemnified Party, the Indemnifying Party will not consent to entry of such claim shall have been given any judgment or enter into any settlement that does not include an unconditional and complete release of the Indemnified party by any Seller Indemnified the claimant or plaintiff making the Third-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 applicableClaim. The foregoing is not intended to limit any duty of any Seller Indemnified Party to mitigate damages to the extent required under applicable law. 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 defense or settlement or defense through counsel chosen by itits own counsel, and provided further, that the reasonable fees and expenses of such separate counsel shall be borne but at its own expense. Failure by the Seller Indemnifying Party to notify the 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 its election 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 assume the defense of any claimThird-Party Claim within 30 days after its receipt of notice thereof pursuant to Section 8.3(a) will be deemed a waiver by the Indemnifying Party of its right to assume the defense of such Third-Party Claim. In such event, no Seller the Indemnified Party shall may, at the Indemnifying Party's cost and expense, defend against such Third-Party Claim in any manner it deems appropriate and settle such Third-Party Claim or consent to 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 entry of any investigationjudgment with respect thereto, defense, pretrial activities, trial, compromise, settlement or discharge of any claim provided that it acts reasonably and 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 informationgood faith.

Notice and Resolution of Claims. No claim for indemnification under Section 6.3.1 shall be actionable or payable (a) Each Person entitled to indemnification pursuant to Section 7.1 or Section 7.2 (an “Indemnified Party”) will promptly give written notice to the extent Seller received a proration, adjustment or credit at Closing for such claim; party who has the duty of indemnification under this Article VII (bthe “Indemnifying Party”) 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 after obtaining knowledge of any representationclaim that it may have pursuant to this Article VII (a “Claim”). Such notice will set forth in reasonable detail the Claim and the basis for indemnification, warranty or covenant of Seller or any successor to or assignee of Purchaser; (d) unless and until but 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 Party’s failure to provide give such notice shall will not affect the obligations of Purchaser unless and only the Indemnifying Party under this Article VII except to the extent that Purchaser the Indemnifying Party is actually materially prejudiced thereby. (b) The Indemnifying Party may elect to assume and control the defense of any Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of expenses relating thereto, if: (i) the Indemnifying Party acknowledges its obligation to indemnify the Indemnified Party for any Losses resulting from such Claim; and (yii) in all events prior the Claim does not seek to impose any liability on 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 other than money damages. (c) If the conditions of Section 7.3(b) are satisfied and the Indemnifying Party elects to mitigate damages to assume and control the extent required under applicable law. In defense of a Claim, then (i) the event that such claim involves a claim by a third party against the Seller Indemnified Party may only settle such Claim with the written consent of the Indemnifying Party, which seeks Damages in an amount consent will not be unreasonably withheld or delayed, (ii) the Indemnifying Party may settle such Claim without the consent of the Indemnified Party only if (A) all monetary damages payable in respect of which indemnification pursuant to this Section 6.3 would be availablethe Claim are paid by the Indemnifying Party, Purchaser shall have fifteen (15B) days after receipt the Indemnified Party receives a full, complete and unconditional release in respect of such notice to decide whether Purchaser will undertakethe Claim without any admission or finding of obligation, conduct and controlliability, through counsel of Purchaser’s choosing fault or guilt (subject criminal or otherwise) with respect to the reasonable approval Claim, and (C) no injunctive, extraordinary, equitable or other relief of any kind is imposed on the Indemnified Party or any of its Affiliates, and (iii) the Indemnifying Party may otherwise settle such Claim only with the consent of the Seller Indemnified Party) and at its own expense, the settlement which consent will not unreasonably be withheld or defense thereof, and if Purchaser so decides, the Seller Indemnified Party shall cooperate with Purchaser in connection therewith, provided; that the Seller delayed. The Indemnified Party may employ separate counsel and participate in such settlement or the defense through counsel chosen by itof any Claim, and provided further, that but the Indemnified Party will be responsible for the reasonable fees and expenses of such separate counsel shall be borne by the Seller Indemnified Party unless: unless (aA) the employment of Indemnifying Party has failed to assume, or if assumed, has failed to reasonably and actively defend such separate counsel shall have been approved by Purchaser in connection with the settlement Claim as provided herein or defense of such action, (b) Purchaser shall not have employed to employ counsel reasonably satisfactory to the Seller Indemnified Party to direct the settlement or defense of such actionwith respect thereto, or (cB) in the Seller reasonable opinion of the Indemnified Party shall have reasonably concluded (upon advice of counsel) a conflict of interest exists between the interests of the Indemnified Party and the Indemnifying Party that there may be defenses available to it which are different from or additional to those available to Purchaserrequires representation by separate counsel, in any of which events case the reasonable fees and expenses of such one separate counsel shall constitute Damages hereunder. Purchaser shall have to the sole Indemnified Party will be paid by the Indemnifying Party. (d) If the conditions of Section 7.3(b) are not satisfied, the Indemnified Party may assume the exclusive 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, trialdefend, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Section 6.3, includingsettle such Claim, but the Indemnifying Party will not limited to, be bound by providing the other party with reasonable access to employees and officers any determination of a Claim so defended or any compromise or settlement effected without its consent (including as witnesses) and other reasonable non-privileged informationwhich may not be unreasonably withheld or delayed).

Notice and Resolution of Claims. No (i) An indemnified party under this Agreement shall give written notice to the indemnifying party within 30 days after obtaining knowledge of: (A) any claim the indemnified party has against the indemnifying party not involving a third-party claim or litigation; and (B) any third-party claim or litigation against the indemnified party as to which recovery may be sought against the indemnifying party because of the indemnity set forth in this Section 6, specifying in reasonable detail the claim or litigation and the basis for indemnification indemnification; provided, that the failure of the indemnified party promptly to notify the indemnifying party of any such matter shall not release the indemnifying party, in whole or in part, from its obligations under this Section 6.3.1 shall be actionable or payable (a) 8 except to the extent Seller received the indemnified party's failure to so notify actually prejudices the indemnifying party's ability to defend against such third-party claim or litigation. If such claim for indemnity arises from the claim or litigation of a prorationthird party, adjustment or credit at Closing for the indemnified party shall permit the indemnifying party to assume the defense of any such claim; , litigation or any litigation resulting from such claim. (bii) if 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 indemnifying party assumes the claim results from a breach defense of any representationsuch third-party claim or litigation, warranty or covenant the obligations of Seller or any successor to or assignee of Purchaser; (d) unless and until the valid claims indemnifying party under this Section 6.3 collectively aggregate more than Agreement shall include taking all steps necessary in the Deductibleinvestigation, in which eventdefense or settlement of such claim or litigation (including the retention of legal counsel) and, subject to the limitations in this Section 6.3.38, only holding the amount indemnified party harmless from and against any and all losses caused by or arising out of any settlement approved by the indemnifying party or any judgment in connection with such claim or litigation. The indemnifying party shall not, in the defense of such claims over and above claim or litigation, except with the Deductible shall be actionablewritten consent of the indemnified party, consent to entry of any judgment, or enter into any settlement: (A) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the indemnified party a complete release from, all liability in respect of or related to such claim or litigation; or (eB) unless written notice containing a description the effect of the specific nature of such claim shall have been given by which is to permit any Seller Indemnified Party injunction, declaratory judgment, other order or other equitable relief 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 be entered, directly or the Remaining Representation Expiration Dateindirectly, as applicableagainst any indemnified party. The foregoing is not intended indemnifying party shall permit the indemnified party to limit any duty of any Seller Indemnified Party to mitigate damages to the extent required under applicable law. 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 defense or settlement or defense through counsel chosen by itthe indemnified party, and provided further, that with the reasonable fees and expenses of such separate counsel shall be borne by the Seller Indemnified Party unless: indemnified party. (aiii) Failure by the employment indemnifying party to notify the indemnified party 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 its election 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 assume the defense of any claimsuch claim or litigation by a third party within 30 days after notice thereof has been given to the indemnifying party shall be deemed a waiver by the indemnifying party of its right to assume the defense of such claim or litigation. If the indemnifying party does not assume the defense of such claim or litigation by a third party, no Seller Indemnified Party shall the indemnified party may defend or settle such claim or litigation in such manner as the same without the prior written approval of Purchaser, not to be unreasonably withheld, conditioned indemnified party may deem appropriate and may settle such claim 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 litigation on such terms as witnesses) and other reasonable non-privileged informationit may deem appropriate.

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. 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.

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. 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) After obtaining knowledge of any claim that it may have pursuant to this Article X, any Purchaser Party entitled to indemnification pursuant to this Article X will promptly give written notice to the extent Sellers, and any Seller received a proration, adjustment or credit at Closing Party entitled to indemnification pursuant to this Article X will promptly give written notice to Purchaser. Such notice will set forth in reasonable detail the claim and the basis for such claim; indemnification. (b) if If such claim for indemnity arises from a claim or Action involving a third party (a "Third-Party Claim"), 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 will permit the Indemnifying Party to assume its defense. If the Indemnifying Party assumes the defense of such Third-Party Claim, it will take all steps necessary to investigate, defend 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 settle such Action and until the valid claims under this Section 6.3 collectively aggregate more than the Deductible, in which eventwill, subject to Section 6.3.310.4, only hold the amount Indemnified Party harmless from and against any and all Damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claims over and above Third-Party Claim. Without the Deductible shall be actionable; or (e) unless written notice containing a description consent of the specific nature Indemnified Party, the Indemnifying Party will not consent to entry of such claim shall have been given by any Seller judgment or enter into any settlement that does not include an unconditional and complete release of the Indemnified Party to Purchaser (x) promptly after it has notice of such claim (provided that by the failure to provide such notice shall not affect claimant or plaintiff making 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 applicableThird-Party Claim. The foregoing is not intended to limit any duty of any Seller Indemnified Party to mitigate damages to the extent required under applicable law. 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 defense or settlement or defense through counsel chosen by itits own counsel, and provided further, that the reasonable fees and expenses of such separate counsel shall be borne but at its own expense. Failure by the Seller Indemnifying Party to notify the 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 its election 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 assume the defense of any claimThird-Party Claim within thirty (30) days after its receipt of notice thereof pursuant to Section 10.3(a) will be deemed a waiver by the Indemnifying Party of its right to assume the defense of such Third-Party Claim. In such event, no Seller the Indemnified Party shall may defend, at the expense of the Indemnifying Party, against such Third-Party Claim in any manner it deems appropriate and may settle such Third-Party Claim or consent to 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 entry of any investigationjudgment with respect thereto, defense, pretrial activities, trial, compromise, settlement or discharge of any claim provided that it acts reasonably and 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 informationgood faith.

Notice and Resolution of Claims. No claim for indemnification under Section 6.3.1 shall be actionable or payable (a) In the event that the Buyer desires to seek recovery against the Escrow Funds pursuant to Section 8.02 of the Purchase Agreement with respect to any Loss that may be indemnifiable thereunder (a "Claim"), the Buyer concurrently will give each of the Escrow Agent and the Seller Representative written notice of such Claim. Each notice of a Claim made by the Buyer (a "Notice of Claim") will contain the following information to the extent Seller received it is reasonably available to the Buyer: (i) the amount of the Claim and the applicable provisions of the Purchase Agreement upon which such Claim is based (which amount may be revised by the Buyer at any time prior to the release of Escrow Funds with respect to such Claim); and (ii) a prorationreasonably detailed description of the facts, adjustment circumstances or credit at Closing events giving rise to the Claim, including, without limitation, whether such Claim is a third party Claim or a Claim between Buyer and any of the Sellers, the identity and address of any third-party claimant (to the extent reasonably available to the Buyer) and copies of any formal demand or complaint. Notwithstanding anything herein to the contrary, the Escrow Agent shall have no responsibility as to the accuracy of the information set forth in a Notice of Claim, whether the description of or the nature of the claim is set forth in reasonable detail or whether the Notice of Claim describes a Claim for such claim; which the Buyer is entitled to be paid pursuant to any agreement between the Buyer and the Sellers, including the Purchase Agreement. (b) if The Escrow Agent will not transfer any of the claim Escrow Funds held in question results from or escrow and subject to a Notice of Claim until such Notice of Claim has been resolved in accordance with the following provisions (the "Determination Date"): (i) If within thirty (30) calendar days after a Notice of Claim is based on a conditionreceived by the Escrow Agent and the Seller Representative (it being understood the Escrow Agent is under no duty to confirm that the Seller Representative has received such notice), state the Seller Representative does not contest the Notice of facts or other matter which was known Claim in writing to any Seller Indemnified Party prior the Buyer and the Escrow Agent, then the Escrow Agent will promptly deliver 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 eventBuyer , subject to Section 6.3.37(c) of this Agreement, only that ------------ amount of Escrow Funds (it being understood the Seller Representative shall have the discretion to determine, by notice to the Escrow Agent, whether to satisfy any claim with Escrow Shares, with Notes or with Escrow Funds other than Escrow Shares or Notes) having an aggregate Fair Market Value determined as of the date of transfer equal to the amount of such claims over damages specified in the Notice of Claim and above will notify the Deductible shall be actionable; or (e) unless written notice containing a description of the specific nature Seller Representative of such claim shall have been given by any Seller Indemnified Party transfer. As used herein, the term "Fair Market Value" means, (i) with respect to Purchaser each Escrow Share that is a share of Buyer Common Stock, $16.00, (xii) 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 with respect to the extent that Purchaser is actually prejudiced thereby) Notes, the aggregate principal amount plus accrued and unpaid interest outstanding on such Notes and (yiii) in all events prior with respect to the Property Representation Expiration Date Escrow Funds other than Escrow Shares 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. 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 expenseNotes, the settlement or defense thereof, and if Purchaser so decides, the Seller Indemnified Party shall cooperate value determined in accordance 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 hereunderSection 12 hereof. 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 shall be actionable or payable (a) Any Indemnified Party will promptly give written notice 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 Indemnifying Parties after obtaining knowledge of any representationClaim that it may have pursuant to this Article VIII, warranty or covenant of Seller or any successor to or assignee of Purchaser; (d) unless and until but 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 Party's failure to provide give such notice shall will not affect the obligations of Purchaser unless and only the Indemnifying Parties under this Article VIII except to the extent that Purchaser is actually the Indemnifying Parties are prejudiced thereby. Such notice will set forth in reasonable detail the Claim and the basis for indemnification, including the amount involved, unless such amount is uncertain or contingent, in which case the notice will so state and Indemnified Party will give a later written notice when the amount becomes fixed. (b) If such Claim arises from a claim or action involving a third party (a "Third-Party Claim") and would, if adversely determined, entitle the Indemnified Party to indemnity under this Article VIII, the Indemnified Party will permit the Indemnifying Parties to assume its defense, provided that (w) the Indemnifying Parties acknowledge their obligation to indemnify the Indemnified Party for any losses resulting from such Third-Party Claim and provide reasonable evidence to the Indemnified Party of their financial ability to satisfy such obligation; (x) the Third-Party Claim does not seek to impose any liability or obligation on the Indemnified Party other than for money damages; (y) in all events prior the Claim does not relate to the Property Representation Expiration Date Indemnified Party's relationship with its customers or employees; and (z) the Remaining Representation Expiration DateIndemnifying Parties notify the Indemnified Party of their election to assume the defense of such Third-Party Claim within 10 days after their receipt of notice thereof pursuant to Section 8.02(a). If such conditions are satisfied and the Indemnifying Parties assume the defense of a Third-Party Claim, as applicablethey will (i) consult with the Indemnified Party with respect to such defense; (ii) take all steps necessary to investigate, defend or settle the Claim; and (iii) subject to Section 8.03, hold the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Parties or any judgment in connection with such Third-Party Claim. The foregoing is not intended to limit any duty of any Seller Indemnified Party will have the right to mitigate damages employ counsel separate from counsel employed by the Indemnifying Parties in any such action and to participate in the extent required under applicable law. 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, but 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 employed by the Seller Indemnified Party unless: (a) will be at the employment expense of the Indemnified Party. If such separate counsel shall have been approved by Purchaser in connection with conditions are not satisfied, 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 assume and control the defense of any claim, no Seller Indemnified the Third-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 informationClaim.

Notice and Resolution of Claims. No claim for indemnification under Section 6.3.1 shall be actionable or payable (a) Each Person entitled to indemnification pursuant to Section 8.01 or Section 8.02 (an "Indemnified Party") will promptly give written notice to the extent Seller received a proration, adjustment or credit at Closing party who has the duty of indemnification under this Article VIII (the "Indemnifying Party") after obtaining knowledge of any claim that it may have pursuant to this Article VIII. Such notice will set forth in reasonable detail the claim and the basis for such claim; indemnification. (b) if If such claim for indemnity arises from a claim or action involving a third party (a "Third-Party Claim"), 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 will permit the Indemnifying Party to assume its defense. If the Indemnifying Party assumes the defense of such Third-Party Claim, it will take all steps necessary to investigate, defend 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 settle such action and until the valid claims under this Section 6.3 collectively aggregate more than the Deductible, in which eventwill, subject to Section 6.3.38.03, only hold the amount Indemnified Party harmless from and against any and all Losses and Expenses caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such claims over and above Third- Party Claim. Without 50 the Deductible shall be actionable; or (e) unless written notice containing a description consent of the specific nature Indemnified Party, the Indemnifying Party will not consent to entry of such claim shall have been given by any Seller judgment or enter into any settlement that does not include an unconditional and complete release of the Indemnified Party to Purchaser (x) promptly after it has notice of such claim (provided that by the failure to provide such notice shall not affect claimant or plaintiff making 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 applicableThird-Party Claim. The foregoing is not intended to limit any duty of any Seller Indemnified Party to mitigate damages to the extent required under applicable law. 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 defense or settlement or defense through counsel chosen by itits own counsel, and provided further, that the reasonable fees and expenses of such separate counsel shall be borne but at its own expense. Failure by the Seller Indemnifying Party to notify the 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 its election 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 assume the defense of any claimThird-Party Claim within 30 days after its receipt of notice thereof pursuant to Section 8.07(a) will be deemed a waiver by the Indemnifying Party of its right to assume the defense of such Third-Party Claim. In such event, no Seller the Indemnified Party shall may defend against such Third-Party Claim in any manner it deems appropriate and may settle such Third-Party Claim or consent to 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 entry of any investigationjudgment with respect thereto, defense, pretrial activities, trial, compromise, settlement or discharge of any claim provided that it acts reasonably and 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 informationgood faith.