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12.4.3 any accident, injury or damage to any person or property occurring in, on
<br />or about the Premises or any part thereof, unless caused by the active negligence or willful
<br />misconduct of the Releasees, or any of them; provided, however, that Licensee shall remain
<br />obligated to defend Releasees notwithstanding any actual or alleged comparative negligence on
<br />the part of Releasees, or any of them, until such time as the actual or alleged comparative
<br />negligence is adjudicated and Releasees, or any of them, are found to be actively'negligent or to
<br />have engaged willful misconduct; and
<br />12.4.4 any failure on the part of Licensee to perform or comply with any of the
<br />covenants, agreements, terms, provisions, conditions or limitations contained in this License on
<br />its part to be performed or complied with.
<br />12.5 Licensee hereby waives any and every claim which arises or which may arise in
<br />its favor and against Licensor hereto during the Term of this License or any extension or renewal
<br />thereof for any and all loss of, or damage to, any of its property located within or upon or
<br />constituting a part of the Property, to the extent that such loss or damage is recovered, or would
<br />have been covered, under an insurance policy or policies. Licensee shall have its insurance
<br />company issue any such insurance policy with a provision waiving such insurance company's
<br />right of subrogation.
<br />12.6 Licensor: (i) shall promptly provide to Licensee with written notice of any claim,
<br />demand, lawsuit, or the like for which it seeks indemnification pursuant to this Section 12 and
<br />provide Licensee with copies of any demands, notices, summonses, or legal papers received in
<br />connection with such claim, demand, lawsuit, or the like (each a "Claim"); (ii) must first obtain
<br />Licensee's written consent prior to settling any such Claim except as may be permitted pursuant
<br />to Section 12.7 below; and (iii) shall fully cooperate with Licensee in the defense of the Claim,
<br />including with respect to settlement discussions. A delay in notice shall not relieve Licensee of
<br />its indemnity obligation, except (y) to the extent Licensee can show it was prejudiced by the
<br />delay; and (z) Licensee shall not be liable for any settlement or litigation expenses incurred
<br />before the time when notice is given.
<br />12.7 Notwithstanding Section 12.6(ii) above, in the event that Licensor is interested to settle a
<br />Claim for which Licensor seeks indemnification pursuant to this Section 12, and Licensee does not wish
<br />to settle the Claim, Licensor must first cause its legal counsel to meet and confer with legal counsel for
<br />Licensee to review in good faith the reasons for Licensor's interest to settle the Claim. If Licensor
<br />reasonably disputes that Licensor's settlement of the Claim without Licensee's prior written consent
<br />would not prejudice Licensee's on-going defense or prosecution of Licensee's other rights pertaining to
<br />the Claim or rights under this License, then Licensor shall so notify Licensee in writing together with
<br />Licensor's reasoning why Licensor reasonably maintains that such prejudice would not occur to Licensee
<br />if Licensor so settles such a Claim without Licensee's prior written consent. Following receipt of such
<br />written explanation from Licensor, Licensee shall be afforded sufficient time to seek judicial remedies in
<br />a court of competent jurisdiction, which sufficient time, shall in no event be less than ten (10) business
<br />days following Licensee's receipt of Licensor's written reasoning. By mutual agreement, if Licensor
<br />proceeds to settle any Claim for which Licensor seeks indemnification pursuant to this Section 12,
<br />Licensee shall not be obligated in any manner to indemnify, defend or hold harmless the Releasees, or
<br />any of them, in connection with such Claim, and Licensee shall have the right to seek reimbursement
<br />from Licensor for all costs and expenses, including attorneys' fees and costs incurred by Licensee in
<br />providing the indemnification defense of Releasees, and any of them, pursuant to this Section 12 prior to
<br />REV: 11-14-18 DZ
<br />Page 19 of 35
<br />ATTY/AGR.2018.264/New Cingular Wireless PCS, LLC - Wireless Communications Site License
<br />Agreement 555 California Way
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