Common use of Seller Indemnity Clause in Contracts

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally indemnify, defend (with counsel acceptable to Purchaser) and hold Purchaser and its respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, including, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and all liquidated liabilities (including, without limitation, attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of or resulting from: (i) any matter or thing pertaining to the ownership or operation of the Property prior to the Closing Date; (ii) any liabilities and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by the release by Purchaser of Seller pursuant to the Assumption and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect of the Property, in each case relating to actions or events occurring prior to the Closing Date; (iii) Seller’s violation of Section 10.1(p) hereof; (iv) Seller’s default under this Agreement beyond any applicable notice and grace periods, due to matters solely within Seller’s control; or (v) Seller’s failure to consummate the Closing and/or any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s control; provided, however, the foregoing indemnity shall not be applicable to (x) Losses incurred as a result of the exercise by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payables, to the extent that such Losses are less than the Maximum Trade Payables Exposure.

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31Seller shall defend, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally indemnify, defend (with counsel acceptable to Purchaser) indemnify and hold Purchaser harmless Buyer and its respective direct and indirect membersAffiliates, managers, partnersdirectors, officers, directors, shareholders, employees, affiliates successors, assigns and their respective successors and assigns, including, without limitation, the Existing Loan Purchaser agents (collectively, the “Purchaser Indemnified PartiesBuyer Entities”), harmless ) from and against any and all liquidated causes of action, claims, judgments, obligations, damages, penalties, fines, costs (including those associated with any environmental investigation, removal, clean-up, government oversight and restoration work and materials), liabilities and losses (including, without limitation, reasonable attorneys’ fees fees, consultants’ fees, and litigation costsexpert fees) (collectively collectively, “LossesClaims”) which any Purchaser Indemnified Party incurs arising out of or resulting fromto the extent caused by: (i) any matter Pre-Existing Contamination (as defined below), except that if Seller proves that the Pre-Existing Contamination did not arise from the operation, occupancy or thing pertaining to the ownership or operation use of the Real Property prior by Seller, Syntex Laboratories, Inc., or any of their predecessors, affiliates, employees, subtenants, occupants, contractors, agents or invitees (“Seller-related Use Entities”), Seller’s share of liability for such Claims (i.e. Claims caused by Pre-Existing Contamination that Seller proves did not arise from the operation, occupancy or use of the Real Property by Seller-related Use Entities) shall be limited to fifty percent (50%) of the Closing Dateamount of such Claims and Seller’s total liability for all such Claims in the aggregate shall be limited to $1,000,000; (ii) any liabilities and any litigation, action or proceeding pertaining failure of Seller-related Use Entities to comply at the ownership or operation of the Real Property or otherwise relating to the Existing Loan (with Environmental Laws except to the extent not covered such Claim is caused by the release by Purchaser of Seller pursuant to the Assumption and Release Agreement) or the mezzanine financing matters described in Section 5.2(ii); provided by Sellerthat Buyer’s affiliates in respect mere ownership alone of the Property, Ground Lease with Pre-Existing Contamination on or under the Real Property shall not be considered a Buyer violation of Environmental Laws as described in each case relating to actions or events occurring prior to the Closing DateSection 5.2(ii) for purposes of this indemnity; (iii) Seller’s violation any breach by Seller of Section 10.1(p) hereofany environmental provision of this Agreement; and (iv) any Claim for personal injury, whether asserted before or after Closing, to the extent that is alleged to arise from pre-Closing exposure to building/construction materials at the Real Property or from exposure to building/construction materials caused by Seller’s default under this Agreement beyond any applicable notice and grace periods, due to matters solely within Seller’s control; or (v) Seller’s failure to consummate the Closing and/or any Seller Indemnitor’s hindrance performance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s controlClosure Work; provided, however, the foregoing that Seller’s indemnity shall obligations under any portion of this Section 5.1 will not be applicable to (x) Losses incurred as a result of the exercise by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payables, extend to the extent that such Losses Claims (w) are less than within the Maximum Trade Payables Exposure.scope of Buyer’s indemnity to Seller in Section 5.2, (x) are first party costs or losses that are released by Buyer Entities pursuant to Section 5.3, (y) are covered by a policy of Worker’s Compensation/Employer’s Liability Insurance in amounts required by applicable law held by Buyer or Buyer Entities or (z) arise from any losses, costs or other Claims suffered, incurred, or asserted by Stanford or any obligations imposed by Stanford under the Ground Lease or otherwise related to the Property, whether at surrender of the Ground Lease or earlier, and whether or not arising from conditions

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) Sellers shall jointly and severally indemnify, defend (with counsel acceptable to Purchaser) defend, save and hold Purchaser and its respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, including, without limitation, harmless the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless Parties from and against any and all liquidated liabilities Losses (including, without limitation, attorneys’ fees and litigation costsduplication) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising that arise out of or resulting fromof: (i) any matter or thing pertaining to the ownership or operation conduct of the Property prior to businesses of the Closing Date; Seller Group (other than the Business) before, at and after the Effective Time and (ii) any liabilities and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent arising out of, based on or resulting from businesses of the Seller Group (other than the Business). Notwithstanding anything to the contrary, the parties acknowledge and agree that (x) the purpose of this Section 10.3 is to effect the separation of the Business from the Seller Group as it may relate to liabilities and expressly not covered by to serve as recourse to the release by Seller Group for breaches of the representations and warranties in Article 3 and (y) for the avoidance of doubt, Sellers shall not be required to indemnify the Purchaser Indemnified Parties hereunder for any Losses to the extent arising out of the Business (whether before or after the Effective Time) or any Losses to the extent arising out of (1) the transactions of the Seller Group with the Business pursuant to the Assumption and Release AgreementAncillary Documents at or after the Effective Time or (2) any Contracts set forth on Schedule 10.3(b) between any of the Companies or the mezzanine financing provided by Seller’s affiliates in respect Subsidiaries, on the one hand, and any other members of the PropertySeller Group, on the other hand, including the Contracts with the Utility Affiliates referenced in each case relating Section 7.2(i). Purchaser shall make claims against the Representations and Warranties Insurance Policy to actions or events occurring the extent coverage is available and Purchaser reasonably determines there is a claim to be made thereunder prior to (or substantially concurrent with) the Closing Date; (iii) Seller’s violation making of Section 10.1(p) hereof; (iv) Seller’s default any claim under this Agreement beyond Article 10 and any applicable notice and grace periods, due to matters solely within Seller’s control; or (v) Seller’s failure to consummate the Closing and/or any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s controlproceeds recovered; provided, howeverfor the avoidance of doubt, the foregoing indemnity shall not be applicable construed as providing that the indemnification in this Article 10 serves as recourse to (x) Losses incurred as a result the Seller Group for breaches of the exercise by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is representations and warranties in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payables, to the extent that such Losses are less than the Maximum Trade Payables ExposureArticle 3.

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date and following If Closing occurs, effective as of the Closing for a period of time ending on December 31Date, 2008subject to Subsection (c) below, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally indemnify, defend (with counsel acceptable to Purchaser) and hold Purchaser and its respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, including, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), Buyer harmless from and against any actual, direct damages (and all liquidated liabilities (including, without limitation, reasonable attorneys’ fees and litigation other reasonable legal costs) incurred by Buyer within six (collectively 6) months of the Closing Date (the “LossesLimitation Period”) resulting from an inaccuracy as of the Closing Date in the representations and warranties of Seller set forth in Section 3.1 hereof (subject to the limitation in Section 3.1 hereof and as updated at Closing pursuant to Exhibit H), of which inaccuracy Buyer had no knowledge of on or before the Closing Date. (b) If Closing occurs, effective as of the Closing Date, subject to Subsection (c) below, Seller shall indemnify, defend and hold Buyer harmless from and against any Purchaser Indemnified Party incurs arising out actual, direct damages (but not for any attorneys’ fees and other legal costs incurred by Buyer if Seller or its insurer shall conduct the defense) incurred by Buyer with respect to a claim which is made by a third party prior to the expiration of or resulting from: the Limitation Period (i) any matter or thing pertaining to the ownership or operation of the Property alleging a tort committed by Seller prior to the Closing Date; Date or (ii) any liabilities and any litigation, action alleging bodily injury or proceeding pertaining property damage related to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered caused by the release by Purchaser of Seller pursuant to the Assumption and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect of the Property, in each case relating to actions or events occurring prior to before the Closing Date; provided that any such claim in clause (iiii) Seller’s violation and/or (ii) does not arise out of Section 10.1(por in any way relate to Hazardous Material or Indoor Air Pollutants. (c) hereof; Such agreements by Seller in Sections 15.1(a) and (ivb) Seller’s default under this Agreement beyond any applicable notice to so indemnify, defend and grace periods, due to matters solely within Seller’s control; or (v) Seller’s failure to consummate the Closing and/or any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s control; provided, however, the foregoing indemnity hold Buyer harmless shall not be applicable to (x) Losses incurred as a result of the exercise by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payables, null and void except to the extent that such Losses that, prior to the expiration of the Limitation Period, Seller shall have received notice from Buyer referring to this Section 15.1 and specifying the amount, nature, and facts underlying any claim being made by Buyer hereunder. Notwithstanding anything to the contrary contained in this Agreement, Seller’s aggregate liability under this Section 15.1 shall be limited to damages, which, in the aggregate (i) exceed Fifty Thousand Dollars ($50,000.00) and (ii) are less than the Maximum Trade Payables Exposure.Five Million Eight Hundred Thousand Dollars ($5,800,000.00). In no event shall Seller be liable for consequential, punitive and/or exemplary damages of any nature whatsoever. 15.2

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31, 2008, Each Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally indemnify, defend (with counsel acceptable to Purchaser) will indemnify and hold Purchaser and harmless Pointer, its respective direct and indirect members, managers, partnersdirectors, officers, directors, shareholders, employees, affiliates any underwriter for Pointer and their respective successors and assignseach person, includingif any, without limitationwho controls Pointer (within the meaning of section 15 of the Securities Act or Section 20(a) of the Exchange Act) or such underwriter, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and all liquidated liabilities losses, damages, claims, liabilities, costs or expenses (includingincluding any amounts paid in any settlement effected with such Seller's consent) asserted against or incurred by Pointer, without limitationits directors, attorneys’ fees and litigation costs) (collectively “Losses”) officers, employees, any such underwriter or any such controlling person which any Purchaser Indemnified Party incurs arising out of or resulting from: shall be caused by (i) any matter untrue statement or thing pertaining alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the ownership statements therein, not misleading, or operation of the Property prior to the Closing Date; (ii) any liabilities untrue statement or alleged untrue statement of a material fact contained in the prospectus (or any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Seller will reimburse Pointer, its directors, officers, employees, any litigationsuch underwriter and each such controlling person of Pointer or any such underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with such loss, claim, damage, liability, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by the release by Purchaser of Seller pursuant to the Assumption and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect of the Property, proceeding; in each case relating to actions or events occurring prior to the Closing Date; (iii) Seller’s violation of Section 10.1(p) hereof; (iv) Seller’s default under this Agreement beyond extent, that such untrue statement or omission is contained in any applicable notice and grace periods, due information so furnished in writing by the Seller to matters solely within Seller’s control; Pointer for inclusion in the Registration Statement or (v) Seller’s failure to consummate the Closing and/or any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s controlsuch prospectus; provided, however, that the foregoing indemnity agreement contained in this Section ‎5.6 shall not be applicable apply to (x) Losses incurred as a result amounts paid in settlement of any losses if such settlement is effected without the prior written consent of the exercise by a party entitled to exercise a right of first refusal to purchase Seller. In no event shall the Property under Chapters 11 or 53A liability of the County Code, (y) Losses resulting from Seller hereunder be greater in amount than the failure dollar amount of the Closing net proceeds received by the Seller upon the sale of the Pointer Shares giving rise to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payables, to the extent that such Losses are less than the Maximum Trade Payables Exposureindemnification obligation.

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date Seller shall, effective from and following after the Closing for a period ----------------- Date, as the sole and exclusive obligation of time ending on December 31Seller with respect to this Agreement or the Property, 2008except as provided further in this Section, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally indemnify, defend (with counsel acceptable to Purchaser) and hold Purchaser and its respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, including, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), Buyer harmless from and against any actual, direct damages (and all liquidated liabilities (including, without limitation, reasonable attorneys’ ' fees and litigation other legal costs) incurred by Buyer within one (collectively “Losses”1) year of the Closing Date which Buyer can prove Buyer would not have incurred but for any Purchaser Indemnified Party incurs arising out inaccuracy as of the Closing Date in the representations and warranties of Seller set forth in the Section hereof entitled "Representations and Warranties of Seller," and Article 11 Entitled Brokers but specifically excluding any statement of facts, whenever occurring, that Buyer had notice of on or resulting frombefore the Closing Date. Such agreement by Seller to so indemnify, defend and hold Buyer harmless shall be null and void except to the extent that, within one (1) year of the Closing Date, Buyer has actually incurred such damage and Seller has received notice from Buyer pursuant to Article 9 hereof entitled "NOTICES" referring to this Section and specifying the amount nature and facts underlying any claim being made by Buyer hereunder. In addition, Seller shall indemnify defend and hold Buyer harmless from and against any actual, direct damages (and reasonable attorneys' fees and other legal costs) incurred by Buyer for a claim which: (ia) any matter is made by a third party alleging a tort committed by Seller, or thing pertaining (b) alleges bodily injury or property damage related to the ownership or operation of the Property prior to and occurring before the Closing Date; (ii) any liabilities and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by the release by Purchaser of Seller pursuant to the Assumption and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect of the Property, in each case relating to actions or events occurring prior to the Closing Date; (iii) Seller’s violation of Section 10.1(p) hereof; (iv) Seller’s default under this Agreement beyond any applicable notice and grace periods, due to matters solely within Seller’s control; or (v) Seller’s failure to consummate the Closing and/or any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s control; provided, however, the foregoing indemnity shall not be applicable to (x) Losses incurred as a result of the exercise by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payables, to the extent that such Losses are less than claim does not arise out of or in any way relate to Hazardous Material or pollutants. Additionally, this provision does not limit the Maximum Trade Payables ExposureBuyer's remedies under Section 15.3 of this Agreement.

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date Seller shall indemnify and following the Closing for a period of time ending on December 31, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Sellerhold harmless Purchaser, the “Seller Indemnitors”) shall jointly Company, the Subsidiaries and severally indemnify, defend (with counsel acceptable to Purchaser) and hold Purchaser and its each of their respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates agents and their respective successors and assigns, from and against all Income and Property Taxes including, without limitation, the Existing Loan Purchaser all assessments and adjustments from audits by any Tax authorities (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and a) with respect to all liquidated liabilities (including, without limitation, attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of periods ending on or resulting from: (i) any matter or thing pertaining to the ownership or operation of the Property prior to the Closing Date; , (iib) with respect to any liabilities period beginning before the Closing Date and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by the release by Purchaser of Seller pursuant to the Assumption and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect of the Property, in each case relating to actions or events occurring prior to ending after the Closing Date; , but only with respect to the portion of such period up to and including the Closing Date (iiisuch portion, a "Pre-Closing Partial Period"), or (c) of Seller and any other entity, other than the Company and the Subsidiaries, which is or has been affiliated with Seller’s violation , as a result of Section 10.1(pTreasury Regulation ss.1.1502-6(a) hereof; (iv) Seller’s default under this Agreement beyond any applicable notice and grace periods, or otherwise due to matters solely within Seller’s control; the affiliated relationship. Notwithstanding the foregoing, Seller shall not be required to indemnify Purchaser, the Company or any Subsidiary for additional Taxes payable as a result of an election made (vor deemed made) Seller’s failure under Section 338 of the Code, or any comparable provision of state or local law. Seller shall be entitled to consummate any net refunds of Income and Property Taxes (including interest thereon less any Taxes payable by the Company thereon and less costs of collection) with respect to the periods described in clauses (a) and (b) above, except those reflected on the 1994 Audited Financial Statements of the Company or a Subsidiary as of December 31, 1994. The Company and the Subsidiaries may carry back any loss or other tax benefit into tax returns of Seller and its Affiliates for tax periods ending on or before (or which include) the Closing and/or any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s controlDate; provided, however, the foregoing indemnity that: (i) Seller shall not be applicable entitled to (x) Losses incurred retain any refunds generated as a result of such carryback, (ii) Purchaser shall indemnify and hold harmless Seller and each of its officers, directors, employees, agents and successors and assigns, from and against the exercise by a party loss of any tax benefits Seller or its Affiliates would have otherwise been entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payablesif such carryback had not occurred, to the extent that such Losses are less than loss exceeds the Maximum Trade Payables Exposure.refund retained by Seller, and (iii) Purchaser shall pay Seller an administrative charge for the preparation of any amended filings to utilize such carrybacks at the rate of $150 per hour to the extent such cost exceeds the refund retained by Seller which is not taken into account in clause (ii), above. Seller's indemnity to pay Income and Property Taxes under this

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31Sublandlord shall defend, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally indemnify, defend (with counsel reasonably acceptable to PurchaserSubtenant) indemnify and hold Purchaser and its respective direct and indirect membersSubtenant harmless, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, including, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and all liquidated liabilities (including, without limitation, attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of or resulting from: (i) any matter or thing pertaining to the ownership or operation of the Property prior to the Closing Date; (ii) any liabilities and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by Subtenant incurs any loss, cost, or liability or is subject to any third party claim or regulatory order that Seller indemnifies Sublandlord for under the release by Purchaser of Seller pursuant to the Assumption and Release AgreementIndemnity described in Section 40(d) or the mezzanine financing provided by Seller’s affiliates in respect of the PropertyPrime Lease. Sublandlord hereby agrees to use diligent, good-faith efforts, so long as Subtenant is not in each case relating to actions or events occurring prior to the Closing Date; (iii) Seller’s violation of Section 10.1(p) hereof; (iv) Seller’s default under this Agreement default, beyond any applicable notice and grace cure periods, due of its payment obligations under this Section 11(c), to matters solely within Seller’s control; or (v) Seller’s failure enforce such indemnity obligations, which efforts shall include, without limitation, where reasonably necessary, the commencement and/or prosecution of litigation. Sublandlord and Subtenant shall be entitled to consummate jointly control the Closing and/or any Seller Indemnitor’s hindrance conduct of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s controllitigation; provided, howeverhowever that in the conduct of any such litigation, both Sublandlord and Subtenant shall have an obligation to act in a commercially reasonable manner and with the foregoing goal of employing a strategy which is designed to secure performance of the aforesaid indemnity obligation of Seller under the Seller Indemnity, provided no action, including settlement, may be taken or required by either party in connection with such litigation to the extent such action may materially and adversely affect the other party’s rights or obligations under the Prime Lease or Sublease without such other party’s consent, which shall not be applicable unreasonably withheld, conditioned; or delayed. All costs incurred in connection with any enforcement action (including reasonable attorneys’ fees and consultant and expert witness fees) undertaken by Sublandlord hereunder shall be paid to (x) Losses incurred Sublandlord by Subtenant, as Additional Rent, upon Sublandlord’s delivery to Subtenant of reasonably detailed invoices therefore. In the event of any dispute regarding responsibility for payment of such costs, or any dispute regarding whether either party is acting in a result commercially reasonable manner and with the goal of employing a strategy which is designed to secure, subject to the conditions above, performance of the exercise aforesaid indemnity obligation of Seller under the Seller Indemnity, such dispute be resolved by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A arbitration as set forth in Article 41 of the County CodePrime Lease. Subtenant shall indemnify Sublandlord against, (y) Losses resulting from and hold Sublandlord harmless from, all costs, expenses, claims, counter-claims, cross-claims, losses, and liabilities incurred by Sublandlord in connection with any initiation of litigation by Sublandlord pursuant to the failure of foregoing provisions, except to the Closing to occur because Purchaser extent such litigation is in caused by Sublandlord’s default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade PayablesSublease or, to the extent that such Losses are less than not caused by Subtenant, by Sublandlord’s default under the Maximum Trade Payables ExposurePrime Lease. Notwithstanding the foregoing, in the event Seller extends the indemnity rights granted in the Seller Indemnity to Subtenant pursuant to a written agreement, Sublandlord’s indemnity obligations under this Section 10(c) shall automatically terminate and be of no further force or effect.

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally agrees to indemnify, defend (with counsel acceptable to Purchaser) and hold Purchaser harmless WTI, its Affiliates, and its their respective direct and indirect members, managers, partners, officers, directors, shareholdersmanagers, employees, affiliates representatives and their respective successors and assignsagents (each, includinga "Purchaser Indemnitee" and, without limitation, the Existing Loan Purchaser (collectively, the “"Purchaser Indemnified Parties”), harmless Indemnitees") from and against any and in respect of all liquidated liabilities Claims (including, without limitation, attorneys’ fees and litigation costsincluding Seller Environmental Claims) (collectively “Losses”) which any Purchaser Indemnified Party incurs whether or not arising out of third party Claims asserted against, resulting to, imposed upon or resulting from: incurred by a Purchaser Indemnitee directly or indirectly as a result of or in connection with (i) any matter breach or thing pertaining to the ownership non-compliance by Seller of any of its covenants or operation of the Property prior to the Closing Dateagreements contained in this Agreement; (ii) the failure of any liabilities representation or warranty made by Seller in this Agreement to be true, correct and any litigation, action or proceeding pertaining to the ownership or operation complete in all respects as of the Property or otherwise relating to the Existing Loan (to the extent not covered by the release by Purchaser date of Seller pursuant to the Assumption this Agreement and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect as of the Property, in each case relating to actions or events occurring prior to the Closing Date; (iii) Seller’s the presence of Hazardous Materials, or the Release or other condition, circumstance, action or omission relating to Hazardous Materials or violation of Section 10.1(p) hereofEnvironmental Law at, from or with respect to property currently or previously leased by Seller, the Facility or the Parcel, or to the Parcel or any locations where Hazardous Materials originating from property currently or previously leased by Seller, the Facility or the Parcel, or the business of Seller, have been sent or come to be located, existing, initiated or occurring prior to the Closing, and related to the business of Seller (including, without limitation, the actions or omissions of Seller or its Affiliates), or otherwise, but excluding any Pre-Seller Environmental Claim; (iv) Seller’s default under this Agreement beyond any applicable notice and grace periods, due the termination of a Defined Benefit Plan to matters solely within Seller’s controlwhich Seller or a Common Control Entity was a contributing sponsor at the time of termination; or (v) Seller’s failure any Retained Liabilities whether or not disclosed on any Schedules to consummate the Closing and/or this Agreement; (vi) any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s control; provided, however, the foregoing indemnity shall not be applicable to (x) Losses incurred as a result of the exercise by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payables, Excluded Assets except to the extent arising from events or conditions for which Seller is indemnified pursuant to Section 9.2(c) or (vii) any Business Contract assumed by WTI that such Losses are less than contains an Anti-Assignment Clause but which was not identified in the Maximum Trade Payables ExposureApprovals Schedule as having an Anti-Assignment Clause.

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31Mercury shall defend, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally indemnify, defend (with counsel reasonably acceptable to PurchaserReliant) indemnify and hold Purchaser and its respective direct and indirect membersReliant harmless, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, including, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and all liquidated liabilities (including, without limitation, attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of or resulting from: (i) any matter or thing pertaining to the ownership or operation of the Property prior to the Closing Date; (ii) any liabilities and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by the release by Purchaser of Seller pursuant Reliant incurs any loss, cost, or liability or is subject to the Assumption and Release Agreement) any third party claim or the mezzanine financing provided by Seller’s affiliates in respect regulatory order that Master Sublandlord indemnifies Mercury for under Section 11.c of the PropertySublease. Mercury hereby agrees to use diligent, good-faith efforts, so long as Reliant is not in each case relating to actions or events occurring prior to the Closing Date; (iii) Seller’s violation of Section 10.1(p) hereof; (iv) Seller’s default under this Agreement beyond any applicable notice and grace cure periods, due of its payment obligations under this Sub-Sublease, to matters solely within Sellerenforce such indemnity obligations, which efforts shall include, without limitation, where necessary in Mercury’s control; or (v) Sellerand Reliant’s failure commercially reasonable discretion, the commencement and/or prosecution of litigation. Mercury and Reliant shall be entitled to consummate jointly control the Closing and/or any Seller Indemnitor’s hindrance conduct of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s controllitigation; provided, howeverhowever that in the conduct of any such litigation, both Mercury and Reliant shall have an obligation to act in a commercially reasonable manner and with the goal of employing a strategy which is designed to secure performance of the aforesaid indemnity obligation of Master Sublandlord under Section 11.c of the Sublease, provided no action, including settlement, may be taken or required by either party in connection with such litigation to the extent such action may materially and adversely affect the other party’s rights or obligations under the Prime Lease, the foregoing indemnity Sublease or this Sub-Sublease without such other party’s consent, which shall not be applicable unreasonably withheld, conditioned, or delayed. All costs incurred in connection with any enforcement action (including reasonable attorneys’ fees and consultant and expert witness fees) undertaken by Mercury hereunder shall be paid to (x) Losses Mercury by Reliant, as Additional Rent, upon Mercury’s delivery to Reliant of reasonably detailed invoices therefore, after deduction of any damages, settlement proceeds, award or other amounts paid to Mercury on account of such action. Reliant shall indemnify Mercury against, and hold Mercury harmless from, all costs, expenses, claims, counter-claims, cross-claims, losses, and liabilities incurred as a result by Mercury in connection with any initiation of litigation by Mercury pursuant to the exercise foregoing provisions, except to the extent such litigation is caused by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in Mercury’s default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade PayablesSub-Sublease or, to the extent that not caused by Reliant, by Mercury’s default under the Prime Lease or the Sublease. In the event of any dispute regarding responsibility for payment of such Losses are less than costs, or any dispute regarding whether either party is acting in a commercially reasonable manner and with the Maximum Trade Payables Exposuregoal of employing a strategy which is designed to secure, subject to the conditions above, performance of the aforesaid indemnity obligation of Master Sublandlord under Section 11.c of the Sublease, such dispute shall be resolved by arbitration as set forth in Article 41 of the Prime Lease. Notwithstanding the foregoing, in the event Master Sublandlord extends the indemnity rights granted in Section 11.c of the Sublease to Reliant pursuant to a written agreement, Mercury’s indemnity obligations under this Section 11(c) shall automatically terminate and be of no further force or effect.

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date Seller shall indemnify and following the Closing for a period of time ending on December 31, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Sellerhold harmless Purchaser, the “Seller Indemnitors”) shall jointly Company, the Subsidiaries and severally indemnify, defend (with counsel acceptable to Purchaser) and hold Purchaser and its each of their respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates agents and their respective successors and assigns, from and against all Income and Property Taxes including, without limitation, the Existing Loan Purchaser all assessments and adjustments from audits by any Tax authorities (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and a) with respect to all liquidated liabilities (including, without limitation, attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of periods ending on or resulting from: (i) any matter or thing pertaining to the ownership or operation of the Property prior to the Closing Date; , (iib) with respect to any liabilities period beginning before the Closing Date and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by the release by Purchaser of Seller pursuant to the Assumption and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect of the Property, in each case relating to actions or events occurring prior to ending after the Closing Date; , but only with respect to the portion of such period up to and including the Closing Date (iiisuch portion, a "Pre-Closing Partial Period"), or (c) of Seller and any other entity, other than the Company and the Subsidiaries, which is or has been affiliated with Seller’s violation , as a result of Treasury Regulation Section 10.1(p1.1502-6(a) hereof; (iv) Seller’s default under this Agreement beyond any applicable notice and grace periods, or otherwise due to matters solely within Seller’s control; the affiliated relationship. Notwithstanding the foregoing, Seller shall not be required to indemnify Purchaser, the Company or any Subsidiary for additional Taxes payable as a result of an election made (vor deemed made) Seller’s failure under Section 338 of the Code, or any comparable provision of state or local law. Seller shall be entitled to consummate any net refunds of Income and Property Taxes (including interest thereon less any Taxes payable by the Company thereon and less costs of collection) with respect to the periods described in clauses (a) and (b) above, except those reflected on the 1994 Audited Financial Statements of the Company or a Subsidiary as of December 31, 1994. The Company and the Subsidiaries may carry back any loss or other tax benefit into tax returns of Seller and its Affiliates for tax periods ending on or before (or which include) the Closing and/or any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s controlDate; provided, however, the foregoing indemnity that: (i) Seller shall not be applicable entitled to (x) Losses incurred retain any refunds generated as a result of such carryback, (ii) Purchaser shall indemnify and hold harmless Seller and each of its officers, directors, employees, agents and successors and assigns, from and against the exercise by a party loss of any tax benefits Seller or its Affiliates would have otherwise been entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payablesif such carryback had not occurred, to the extent that such Losses are less than loss exceeds the Maximum Trade Payables Exposure.refund retained by Seller, and (iii) Purchaser shall pay Seller an administrative charge for the preparation of any amended filings to utilize such carrybacks at the rate of $150 per hour to the extent such cost exceeds the refund retained by Seller which is not taken into account in clause (ii), above. Seller's indemnity to pay Income and Property Taxes under this

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date Each Seller shall severally and following the Closing for a period of time ending on December 31, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall not jointly and severally indemnify, defend (with counsel acceptable to Purchaser) indemnify and hold harmless Purchaser from and its respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, includingagainst, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and all liquidated liabilities (including, without limitation, attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of or resulting fromduplication: (i) such Seller’s allocable share (based on such Seller’s Applicable Percentage) of any matter Taxes (other than any Taxes included in the determination of Final Working Capital) imposed on or thing pertaining with respect to the ownership or operation any of the Property prior Companies and any of their respective Subsidiaries with respect to the any Pre-Closing DateTax Period; (ii) any liabilities and Taxes imposed on or with respect to such Seller with respect to any litigation, action or proceeding pertaining to the ownership or operation Pre-Closing Tax Period (including any Taxes imposed under Section 1445 of the Property or otherwise relating Code with respect to the Existing Loan (to the extent such Seller if such Seller did not covered by the release by Purchaser of Seller provide a valid certificate pursuant to the Assumption and Release Section 3.2(a)(iv) of this Agreement) or the mezzanine financing provided by and (iii) such Seller’s affiliates allocable share (based on such Seller’s Applicable Percentage) of any Losses incurred by Purchaser, any of the Companies or any of their Subsidiaries attributable to or resulting from (A) the inaccuracy or breach of the representations contained in Section 5.16(h) and Section 5.16(j), and (B) any breach or non-performance of any covenant or agreement in this Section 8.8; provided, however, that the liability under Section 8.8(a)(i) and Section 8.8(a)(iii) (combined with all other Losses paid or payable by such Seller under Section 10.1(a) (other than, with respect to any such Seller, in respect of the Property, any Seller Specified Representations of such Seller) and Section 10.1(b) shall in each case relating to actions or events occurring prior to the Closing Date; (iii) no event exceed such Seller’s violation Applicable Percentage of Section 10.1(p) hereof; (iv) the Escrow Amount, as set forth opposite such Seller’s default under this Agreement beyond any applicable notice name on the Transaction Consideration Disbursement Schedule, and grace periods, due to matters solely within Seller’s control; or (v) Seller’s failure to consummate the Closing and/or any Seller Indemnitor’s hindrance aggregate liability of the Closing or Sellers under Section 8.8(a)(i) and Section 8.8(a)(iii) (together with all Losses paid as payable by the consummation of Sellers under Section 10.1(a) and Section 10.1(b) (other than with respect to Seller Specified Representations) shall not exceed the Existing Loan Acquisition TransactionEscrow Amount. Purchaser shall have no claim against the Sellers under Section 8.8(a)(i) and Section 8.8(a)(iii) other than for the cash and Purchaser Common Stock, in each case, due in the Escrow Amount. Purchaser may also choose to matters solely within (but is not required to) access the Escrow Amount if entitled to payment under Section 8.8(a)(ii) from a Seller with respect to Taxes imposed on or with respect to such Seller’s control; provided, however, Purchaser may not recover from the foregoing indemnity shall not be applicable Escrow Amount with respect to (x) Losses incurred as a result such Seller in an amount that exceeds such Seller’s Applicable Percentage of the exercise Escrow Amount, as set forth opposite such Seller’s name on the Transaction Consummation Disbursement Schedule, taking into account all other Losses paid or payable by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default such Seller under this Agreement beyond Section 8.8(a), Section 10.1(a) (other than, with respect to any applicable notice or grace periods; or (zsuch Seller, in respect of any Seller Specified Representations of such Seller) Losses related to the Outstanding Trade Payables, to the extent that such Losses are less than the Maximum Trade Payables Exposureand Section 10.1(b).

Seller Indemnity. 40.1 Except as expressly provided under this subsection (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31, 2008b), Seller agrees to hold harmless the Purchaser Indemnified Parties from claims, damages, losses and CBRE Realty Financeexpenses, Inc.including but not limited to attorneys’ fees, for damage to property owned by the Seller or any of its employees, agents or subcontractors, or any bodily or personal injury to its employees, agents or subcontractors arising out of, or from the performance of Seller’s operations or services, or any act, omission, claim or loss of any of Seller’s employees, agents, subcontractors or any other party Seller is responsible for (collectively, “Losses”), except to the extent such Loss is due to or caused by the gross negligence or willful misconduct of a Delaware corporation (“Pavilion Indemnitor”Purchaser Indemnified Party. Further, nothing in the forgoing shall limit the right of Seller or its insurers to proceed against and together with Sellercollect insurance proceeds from Purchaser’s insurers to the extent such Loss is covered by Purchaser’s polices. Subject to the foregoing, the “Seller Indemnitors”) shall jointly and severally will indemnify, defend and hold harmless the Purchaser Indemnified Parties (with counsel reasonably acceptable to Purchaser) and hold Purchaser and its respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, including, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and all liquidated liabilities (including, without limitation, attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of Liabilities resulting from or resulting from: (i) any matter or thing pertaining to the ownership or operation of the Property prior to the Closing Date; (ii) any liabilities and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (any third-party claim for: injury to the extent not covered by the release by Purchaser or death of Seller pursuant persons, and damage to the Assumption and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect loss of the Property, in each case relating to actions or events occurring prior to the Closing Date; (iii) Seller’s violation of Section 10.1(p) hereof; (iv) Seller’s default under this Agreement beyond any applicable notice and grace periods, due to matters solely within Seller’s control; or (v) Seller’s failure to consummate the Closing and/or any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transactionproperty, in each case, due to matters solely within Seller’s controlthe extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of Seller or its agents; provided, however, that nothing in this sentence requires Seller to indemnify Purchaser Indemnified Parties for any Liabilities resulting from or relating to any claim to the foregoing indemnity shall not be applicable to (x) Losses incurred as a result extent caused by or arising out of the exercise by a party entitled negligent acts or omissions of, or the willful misconduct of, any Purchaser Indemnified Parties. Subject to exercise a right of first refusal the foregoing, Purchaser agrees to purchase the Property under Chapters 11 or 53A of the County Codedefend, indemnify, and hold harmless Seller (y) Losses with counsel reasonably acceptable to Seller), its employees, subcontractors and their employees from any Liabilities resulting from the failure or relating to any third-party claim (other than employees, agents, contractors or subcontractors of the Closing Seller) in connection with damage to occur because Purchaser is in default under this Agreement beyond property or any applicable notice bodily or grace periods; or (z) Losses related to the Outstanding Trade Payablespersonal injury, to the extent that such Losses Liabilities are less than due to the Maximum Trade Payables Exposuremisconduct or negligence of the Purchaser, the Purchaser’s subcontractors or agents or any other person or party under the control (whether actual or constructive) of the Purchaser (but not including Seller, any of its employees, contractors, subcontractors, agents or any of its or their respective employees, contractors, subcontractors or agents).

Seller Indemnity. 40.1 (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31Sublandlord shall defend, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally indemnify, defend (with counsel reasonably acceptable to PurchaserSubtenant) indemnify and hold Purchaser and its respective direct and indirect membersSubtenant harmless, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, including, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and all liquidated liabilities (including, without limitation, attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of or resulting from: (i) any matter or thing pertaining to the ownership or operation of the Property prior to the Closing Date; (ii) any liabilities and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by Subtenant incurs any loss, cost, or liability or is subject to any third party claim or regulatory order that Seller indemnifies Sublandlord for under the release by Purchaser of Seller pursuant to the Assumption and Release AgreementIndemnity described in Section 40(d) or the mezzanine financing provided by Seller’s affiliates in respect of the PropertyPrime Lease. Sublandlord hereby agrees to use diligent, good-faith efforts, so long as Subtenant is not in each case relating to actions or events occurring prior to the Closing Date; (iii) Seller’s violation of Section 10.1(p) hereof; (iv) Seller’s default under this Agreement default, beyond any applicable notice and grace cure periods, due of its payment obligations under this Section 11(c), to matters solely within Seller’s control; or (v) Seller’s failure enforce such indemnity obligations, which efforts shall include, without limitation, where reasonably necessary, the commencement and/or prosecution of litigation. Sublandlord and Subtenant shall be entitled to consummate jointly control the Closing and/or any Seller Indemnitor’s hindrance conduct of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s controllitigation; provided, howeverhowever that in the conduct of any such litigation, both Sublandlord and Subtenant shall have an obligation to act in a commercially reasonable manner and with the foregoing goal of employing a strategy which is designed to secure performance of the aforesaid indemnity obligation of Seller under the Seller Indemnity, provided no action, including settlement, may be taken or required by either party in connection with such litigation to the extent such action may materially and adversely affect the other party’s rights or obligations under the Prime Lease or Sublease without such other party’s consent, which shall not be applicable unreasonably withheld, conditioned, or delayed. All costs incurred in connection with any enforcement action (including reasonable attorneys’ fees and consultant and expert witness fees) undertaken by Sublandlord hereunder shall be paid to (x) Losses incurred Sublandlord by Subtenant, as Additional Rent, upon Sublandlord’s delivery to Subtenant of reasonably detailed invoices therefore. In the event of any dispute regarding responsibility for payment of such costs, or any dispute regarding whether either party is acting in a result commercially reasonable manner and with the goal of employing a strategy which is designed to secure, subject to the conditions above, performance of the exercise aforesaid indemnity obligation of Seller under the Seller Indemnity, such dispute shall be resolved by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A arbitration as set forth in Article 41 of the County CodePrime Lease. Subtenant shall indemnify Sublandlord against, (y) Losses resulting from and hold Sublandlord harmless from, all costs, expenses, claims, counter-claims, cross-claims, losses, and liabilities incurred by Sublandlord in connection with any initiation of litigation by Sublandlord pursuant to the failure of foregoing provisions, except to the Closing to occur because Purchaser extent such litigation is in caused by Sublandlord’s default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade PayablesSublease or, to the extent that such Losses are less than not caused by Subtenant, by Sublandlord’s default under the Maximum Trade Payables ExposurePrime Lease. Notwithstanding the foregoing, in the event Seller extends the indemnity rights granted in the Seller Indemnity to Subtenant pursuant to a written agreement, Sublandlord’s indemnity obligations under this Section 10(c) shall automatically terminate and be of no further force or effect.