Laserfiche WebLink
Optionor shall indemnify, hold harmless, and defend Optionee and its officers, directors, <br />employees, agents, affiliates, successors and permitted assigns (collectively, " Optionee <br />Indemnified Party ") against any and all losses, damages, liabilities, deficiencies, claims, <br />actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever <br />kind, including reasonable attorneys' fees, that are incurred by an Optionee Indemnified Party <br />(collectively, " Optionee Losses "), arising out of any claim alleging: (i) any breach or non- <br />fulfillment of any covenant or any negligent or more culpable act or omission of Optionor or its <br />personnel (including any reckless or willful misconduct) in connection with this Agreement; (ii) <br />any false representation of Optionor under this Agreement; (iii) the existence of any <br />Environmental Conditions upon the Property or obligations related to such Environmental <br />Conditions accruing prior to the Closing under the Disposition Agreement; or (iv) any claim for <br />payment of Commissions to any other person or entity claiming by, through or under Optionor. <br />Notwithstanding anything to the contrary in this Agreement, Optionor is not obligated <br />to indemnify, hold harmless or defend any Optionee Indemnified Party against any claim <br />(whether direct or indirect) if such claim or corresponding Optionee Losses arise out of or result <br />from: (a) Optionee Indemnified Party's and/or Optionee's agents' gross negligence or more <br />culpable act or omission (including recklessness or willful misconduct); or (b) Optionee <br />Indemnified Party's bad faith failure to materially comply with any of its material obligations set <br />forth in this Agreement. Payments by Optionor under this Section in respect of any Optionee <br />Losses are limited to the amount of any liability or damage that remains after deducting <br />therefrom any insurance proceeds and any indemnity, contribution or other similar payment <br />actually received by any Optionee Indemnified Party in respect of any such indemnity claim. <br />Any Optionee Indemnified Party shall use its best efforts to seek to recover any insurance <br />proceeds in connection with making a claim under this Section. Promptly after the realization of <br />any insurance proceeds, indemnity, contribution or other similar payment, any Optionee <br />Indemnified Party shall reimburse Optionor for such reduction in Optionee Losses for which any <br />Optionee Indemnified Party was paid under this Section before the realization of reduction of <br />such Optionee Losses. Any Optionee Indemnified Party shall give Optionor a prompt Claim <br />Notice of any Optionee Losses or discovery of facts on which such Optionee Indemnified Party <br />intends to base a request for indemnification under this Section. Any Optionee Indemnified <br />Party's failure to provide a Claim Notice to Optionor under this Section does not relieve Optionor <br />of any liability that Optionor may have to any Optionee Indemnified Party, but in no event shall <br />Optionor be liable for any Optionee Losses that result from a delay in providing a Claim Notice. <br />Each Claim Notice must contain a description of the claim and the nature and amount of the <br />related Optionee Losses (to the extent that the nature and amount of the Optionee Losses are <br />known at the time). Any Optionee Indemnified Party shall furnish promptly to Optionor copies <br />of all papers and official documents received in respect of any Optionee Losses. Optionor's duty <br />to defend applies immediately, regardless of whether any Optionee Indemnified Party has paid <br />any sums or incurred any detriment arising out of or relating, directly or indirectly, to any claim. <br />Optionor may assume, at its sole option, control of the defense, appeal or settlement of any claim <br />that is reasonably likely to give rise to an indemnification claim under this Section (an <br />" Optionor Indemnified Claim ") by sending written notice of the assumption to Optionee on or <br />before thirty (30) days after receipt of a Claim Notice to acknowledge responsibility for the <br />defense of such Optionor Indemnified Claim and undertake, conduct and control, through <br />reputable independent counsel of its own choosing (which Optionee shall find reasonably <br />satisfactory) and at Optionor's sole cost and expense, the settlement or defense thereof. If <br />16 <br />51528687.9 <br />