IN ANY SUCH CASE UNDER THIS SECTION 9.2(C)
ONLY TO THE EXTENT THAT ANY SUCH LIABILITY ARISES OUT OF OR IS BASED UPON ANY
SUCH UNTRUE STATEMENT OR OMISSION MADE IN THE SPECIFIED SECTIONS IN RELIANCE
UPON AND IN CONFORMITY WITH INFORMATION FURNISHED TO LENDER BY OR ON BEHALF OF
BORROWER IN CONNECTION WITH THE PREPARATION OF THE DISCLOSURE DOCUMENTS OR IN
CONNECTION WITH THE UNDERWRITING OF THE LOAN, INCLUDING, WITHOUT LIMITATION,
FINANCIAL STATEMENTS OF BORROWER, OPERATING STATEMENTS AND
79
RENT ROLLS WITH RESPECT TO THE PROPERTY, PROVIDED, HOWEVER, THAT WITH RESPECT TO
STATEMENTS MADE IN THE SPECIFIED SECTIONS THAT ARE BASED UPON INFORMATION
PROVIDED BY THIRD PARTIES, BORROWER WILL BE LIABLE ONLY IF BORROWER KNEW THAT
SUCH INFORMATION WAS FALSE OR OMITTED TO STATE A MATERIAL FACT KNOWN TO BORROWER
AND NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(D)
PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED PARTY UNDER THIS
SECTION 9.2 OF NOTICE OF THE COMMENCEMENT OF ANY ACTION, SUCH INDEMNIFIED PARTY
WILL, IF A CLAIM IN RESPECT THEREOF IS TO BE MADE AGAINST THE INDEMNIFYING PARTY
UNDER THIS SECTION 9.2, NOTIFY THE INDEMNIFYING PARTY IN WRITING OF THE
COMMENCEMENT THEREOF, BUT THE OMISSION TO SO NOTIFY THE INDEMNIFYING PARTY WILL
NOT RELIEVE THE INDEMNIFYING PARTY FROM ANY LIABILITY WHICH THE INDEMNIFYING
PARTY MAY HAVE TO ANY INDEMNIFIED PARTY HEREUNDER EXCEPT TO THE EXTENT THAT
FAILURE TO NOTIFY CAUSES PREJUDICE TO THE INDEMNIFYING PARTY. IN THE EVENT THAT
ANY ACTION IS BROUGHT AGAINST ANY INDEMNIFIED PARTY, AND IT NOTIFIES THE
INDEMNIFYING PARTY OF THE COMMENCEMENT THEREOF, THE INDEMNIFYING PARTY WILL BE
ENTITLED, JOINTLY WITH ANY OTHER INDEMNIFYING PARTY, TO PARTICIPATE THEREIN AND,
TO THE EXTENT THAT IT (OR THEY) MAY ELECT BY WRITTEN NOTICE DELIVERED TO THE
INDEMNIFIED PARTY PROMPTLY AFTER RECEIVING THE AFORESAID NOTICE FROM SUCH
INDEMNIFIED PARTY, TO ASSUME THE DEFENSE THEREOF WITH COUNSEL REASONABLY
SATISFACTORY TO SUCH INDEMNIFIED PARTY. AFTER NOTICE FROM THE INDEMNIFYING PARTY
TO SUCH INDEMNIFIED PARTY UNDER THIS SECTION 9.2, SUCH INDEMNIFIED PARTY SHALL
PAY FOR ANY LEGAL OR OTHER EXPENSES SUBSEQUENTLY INCURRED BY SUCH INDEMNIFIED
PARTY IN CONNECTION WITH THE DEFENSE THEREOF OTHER THAN REASONABLE COSTS OF
INVESTIGATION; PROVIDED, HOWEVER, IF THE DEFENDANTS IN ANY SUCH ACTION INCLUDE
BOTH THE INDEMNIFIED PARTY AND THE INDEMNIFYING PARTY AND THE INDEMNIFIED PARTY
SHALL HAVE REASONABLY CONCLUDED THAT THERE ARE ANY LEGAL DEFENSES AVAILABLE TO
IT AND/OR OTHER INDEMNIFIED PARTIES THAT ARE DIFFERENT FROM OR ADDITIONAL TO
THOSE AVAILABLE TO THE INDEMNIFYING PARTY, THE INDEMNIFIED PARTY OR PARTIES
SHALL HAVE THE RIGHT TO SELECT SEPARATE COUNSEL TO ASSERT SUCH LEGAL DEFENSES
AND TO OTHERWISE PARTICIPATE IN THE DEFENSE OF SUCH ACTION ON BEHALF OF SUCH
INDEMNIFIED PARTY AT THE COST OF THE INDEMNIFYING PARTY. THE INDEMNIFYING PARTY
SHALL NOT BE LIABLE FOR THE EXPENSES OF MORE THAN ONE SEPARATE COUNSEL UNLESS AN
INDEMNIFIED PARTY SHALL HAVE REASONABLY CONCLUDED THAT THERE MAY BE LEGAL
DEFENSES AVAILABLE TO IT THAT ARE DIFFERENT FROM OR